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ABRIDGED  EDITION 


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/or  the  Use  of  Colleges  and  High  Schools 


BEING  AN  INTRODUCTION  TO  THE  STUDY  OF 
THE  GOVERNMENT  AND  INSTITUTIONS 
OF  THE  UNITED  STATES 


BY 

JAMES  BRYCE 

AUTHOR  OF  “  THE  HOLY  ROMAN  EMPIRE,”  “  TRANSCAUCASIA 

AND  ARARAT,”  ETC. 


Nefo  gotk 

THE  MACMILLAN  COMPANY 

LONDON:  MACMILLAN  &  CO.,  Ltd. 

1905 


All  rights  reserved 


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COPYKIGIIT,  1S96, 

By  THE  MACMILLAN  COMPANY. 


Set  up  and  electrotyped  October,  1896.  Reprinted  Januarv. 
1897  ;  January,  July,  1898  ;  July,  1899  ;  March,  July,  iqoo:  January. 
August,  1^02;  July,  1903;  August,  1904;  July,  1905. 


Norton  oh  llilress 

J.  S.  Cushing  &  Co.  —  Berwick  &  Smith 
Norwood  Mass.  U.S.A. 


PREFACE 


This  abridged  edition  of  The  American  Commonwealth  has 
been  prepared  to  meet  the  wishes  of  a  number  of  teachers  in 
colleges  and  high  schools,  who  think  that  parts  of  the  com¬ 
plete  work  are  either  too  difficult  for  their  pupils,  or  are  at 
any  rate  beyond  the  range  of  their  requirements.  I  have 
accordingly  omitted  from  the  present  volume  most  of  the 
chapters  or  paragraphs  which  do  not  bear  directly  upon  the 
Constitution  and  government  of  the  United  States  or  of 
the  several  States  of  the  Union,  as  well  as  all  the  discussions 
of  technical  points  of  law,  together  with  such  observations  on 
political  questions  or  the  attitude  of  political  parties  as  seem 
out  of  place  in  a  treatise  of  an  educational  character.  Every¬ 
thing  likely  to  be  serviceable  for  the  purposes  of  instruction 
has  been  retained.  The  corrections  made  in  the  last  revised 
edition  of  the  complete  work  have  been  inserted,  and  some 
others  added,  in  order  to  bring  the  statements  of  fact  (so  far 
as  possible)  up  to  date. 

In  the  task  of  selecting  the  parts  to  be  retained,  I  have 
received  most  valuable  assistance  from  my  friend,  Mr.  Jesse 
Macy,  Professor  of  Political  Science  in  Iowa  College,  whose 
mastery  of  that  subject,  and  long  experience  in  teaching  it, 
make  him  a  specially  competent  judge  of  the  comparative 
educational  value,  and  comparative  difficulty  to  a  beginner,  of 
the  various  parts  of  the  book. 

The  American  Commonwealth  was  originally  written  with  a 
view  to  European  rather  than  to  American  readers  ;  and  the 
reception  it  has  had  the  good  fortune  to  find  in  the  United 


VI 


PREFACE 


States  has  been  to  me  equally  gratifying  and  unexpected. 
That  reception  encourages  me  to  hope  that  this  concise  survey 
of  the  institutions  of  their  country  may  prove  helpful  to  young 
Americans,  not  only  by  interesting  them  in  the  study  of  the 
Constitution  as  a  body  of  living  principles,  but  also  by  stimu¬ 
lating  in  them  a  thoughtful  patriotism,  and  quickening  their 
sense  of  the  responsibility  which  will  devolve  upon  them  as 
the  citizens  of  a  mighty  nation. 


September  13th,  1896. 


CONTENTS 


PAGE 


Preface  .....  .  v 

List  of  Presidents  . . .  x 

Area,  Population,  and  Date  of  Admission  of  the  States  .  xi 


Dates  of  some  Remarkable  Events  in  the  History  of  the 

North  American  Colonies  and  United  States  .  .  xiii 


CHAP. 

I. 

II. 

III. 
4s 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 
XI. 
V  XII. 

XIII. 

XIV. 
XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 


PART  I  —  The  National  Government 

The  Nation  and  the  States  ..... 
The  Origin  of  the  Constitution  .... 
Nature  of  tile  Eederal  Government  . 

The  President  .  .  • 

Presidential  Powers  and  Duties  .... 

Observations  on  the  Presidency  .... 

Why  Great  Men  are  not  chosen  Presidents 
The  Cabinet  ........ 

The  Senate  ........ 

The  Senate  as  an  Executive  and  Judicial  Body 
The  Senate  :  Its  Working  and  Influence  . 

The  House  of  Representatives  .... 

The  House  at  Work  ...... 

The  Committees  of  Congress  .... 

Congressional  Legislation  ..... 

Congressional  Finance  ...... 

The  Relations  of  the  Two  Houses 
General  Observations  on  Congress 
The  Relations  of  Congress  to  the  President  . 
The  Legislature  and  the  Executive  . 

The  Federal  Courts  .  .  ^ 

vii 


3 

6 

16 

22 

37 

52 

58 

64 

71 

78 

83 

94 

108 

115 

123 

131 

138 

143 

155 

161 

167 


Vlll 


CONTENTS 


CHAP. 

XXII. 

XXIII. 

XXIY. 

XXV. 


XXVI. 

XXVII. 

XXVIII. 
v  XXIX 
XXX. 
XXXI. 
XXXII. 
XXXIII. 


The  Courts  and  the  Constitution  . 

The  Working  of  the  Courts  .  ...  . 

Comparison  of  the  American  and  European  Systems 

General  Observations  on  the  Erame  of  National 
Government  .  . 

The  Federal  System . . 

Working  Relations  of  the  National  and  the  State 
Governments  ........ 

Criticism  of  the  Federal  System  . 

Merits  of  the  Federal  System  . 

The  Amendment  of  the  Constitution 
The  Interpretation  of  the  Constitution 
The  Development  of  the  Constitution  by  Usage  . 
The  Results  of  Constitutional  Development 


xxxiv. 

f  XXXV. 
XXXVI. 
XXXVII. 
XXXVIII. 
XXXIX. 
XL. 
XLI. 
XLII. 
XLIII. 
XLIV. 
XLV. 
XLVI. 
XLVII. 
XLVIII. 
XLIX. 
L. 
LI. 


PART  II  —  The  State  Governments 

Nature  of  the  American  State 
State  Constitutions  .  /  . 

Contents  of  State  Constitutions 
The  Development  of  State  Constitutions 
Direct  Legislation  by  the  People  . 

State  Governments  :  The  Legislatures  . 

The  State  Executive . 

The  State  Judiciary . 

State  Finance  .  . 

The  Working  of  State  Governments 
Remedies  for  t^ie  Faults  of  State  Governments 

State  Politics . 

The  Territories . 


Local  Government  ..... 
Observations  on  Local  Government 
The  Government  of  Cities 
The  Working  of  City  Governments 

An  American  View  of  Municipal  Government  in 
the  United  States  .... 


PAGE 

178 

188 

201 

214 

224~r 


233 

243 


254 

260 

271 

278 


287  f 
297  ^ 
306  V 
317 

P 

324 

• 

329  f 

342 

347 

356 

366 

379 

387 

397 

403 

413 

417 

422 

428 


CONTENTS 


IX 


PART  III  —  Political  Methods  and  Physical 

Influences 

CHAP.  PAGE 

lii.  Political  Parties  and  their  History  ....  447 

liii.  Nominating  Conventions  .......  457 

liv.  The  Nominating  Convention  at  Work  ....  465 

lv.  How  Public  Opinion  Rules  in  America  .  .  .  478 

lvi.  The  Action  op  Public  Opinion  .....  482 

lvii.  Failure  and  Successes  of  Public  Opinion  .  .  .  491 

lviii.  The  Home  of  the  Nation  .  .  .  .  .  .  503 


Appendix  :  Constitution  of  the  United  States  .  .  .  523 

Index . .  537 


LIST  OF  PRESIDENTS 


1789-1793 

1793-1797 

1797-1801 

1801-1805 

1805-1809 

1809-1813 

1813-1817 

1817-1821 

1821-1825 

1825-1829 

1829-1833 

1833-1837 

1837-1841 

1841-1845 

1845-1849 

1849-1853 

1853-1857 

1857-1861 

1861-1865 

1865-1869 

1869-1873 

1873-1877 

1877-1881 

1881-1885 

1885-1889 

1889-1893 

1893- 


George  Washington. 

Re-elected. 

John  Adams. 

Thomas  Jefferson. 

Re-elected. 

James  Madison. 

Re-elected. 

James  Monroe. 

Re-elected. 

John  Quincy  Adams. 

Andrew  Jackson. 

Re-elected. 

Martin  Van  Buren. 

William  Henry  Harrison  (died  1841). 

John  Tyler. 

James  Knox  Polk. 

Zachary  Taylor  (died  1850). 

Millard  Fillmore. 

Franklin  Pierce. 

James  Buchanan. 

Abraham  Lincoln. 

Re-elected  (died  1865). 

Andrew  Johnson. 

Ulysses  S.  Grant. 

Re-elected. 

Rutherford  Birchard  Hayes. 

James  Abram  Garfield  (died  1881). 

Chester  A.  Arthur. 

(Stephen)  Groyer  Cleveland. 
Benjamin  Harrison. 

Grover  Cleveland. 


x 


ABEA,  POPULATION,  AND  DATE  OF  ADMISSION 

OF  THE  STATES 


The  Thirteen  Original  States,  in  the  order  in  which  they 

Ratified  the  Constitution. 


Ratified  the 

Area  in 

Population 

Constitution. 

square  miles.1 

(1890). 

Delaware  . 

1787 

2,050 

168,493 

Pennsylvania  . 

1787 

45,215 

5,258,014 

New  Jersey 

1787 

7,815 

1,444,933 

Georgia  . 

1788 

59,475 

1,837,353 

Connecticut 

1788 

4,990 

746,258 

Massachusetts  . 

1788 

8,315 

2,238,943 

Maryland 

1788 

12,210 

1,042,390 

South  Carolina  . 

1788 

30,570 

1,151,149 

New  Hampshire 

1788 

9,305 

376,530 

Virginia 

1788 

42,450 

1,655,980 

New  York 

1788 

49,170 

5,997,853 

North  Carolina . 

1789 

52,250 

1,617,947 

Rhode  Island 

1790 

1,250 

345,506 

States  subsequently  admitted,  in  the 

ORDER  OF  THEIR  ADMISSION. 

Vermont 

1791 

9,565 

332,422 

Kentucky 

1792 

40,400 

1,858,635 

Tennessee 

1796 

42,050 

1,767,518 

Ohio 

.  1802 

41,060 

3,672,316 

Louisiana 

.  •  1812 

48,720 

1,118,587 

Indiana  . 

1816 

36,350 

2,192,404 

Mississippi 

1817 

46,810 

1,289,600 

Illinois  . 

1818 

56,650  . 

3,826,351 

Alabama 

1819 

52,250 

1,513,017 

1  According  to  census  returns  of  1890. 


xi 


AREA,  POPULATION,  ETC. 


xii 


Maine . 

• 

Admitted. 

1820 

Area  in 
square  miles. 

33,040 

Population 

(1890). 

661,086 

Missouri 

1821 

69,415 

2,679,184 

Arkansas 

1836 

53,850 

1,128,179 

Michigan  . 

1837 

58,915 

2,093,889 

Florida 

1845 

58,680 

391,422 

Texas 

1845 

265,780 

2,235,523 

Iowa  . 

1846 

56,025 

1,911,896 

Wisconsin  . 

1848 

56,040 

1,686,880 

California  . 

1850 

158,360 

1,208,130 

Minnesota  . 

1858 

83,365 

1,301,826 

Oregon 

1859 

96,030 

313,767 

Kansas 

1861 

82,080 

1,427,096 

W.  Virginia 

1863 

24,780 

762,794 

Nevada 

1864 

110,700 

45,761 

Nebraska 

1867 

77,510 

1,058,910 

Colorada 

1876 

103,925 

412,198 

N.  Dakota  . 

1889 

70,795 

182,719 

S.  Dakota  . 

1889 

77,650 

328,808 

Montana 

1889 

146,080 

132,159 

Washington 

1889 

69,180 

349,390 

Wyoming  . 

1890 

97,890 

60,705 

Idaho 

1890 

84,800 

84,385 

Utah1 . 

1895-6 

84,970 

207,905 

THE  TERRITORIES. 


Area. 

Population  in  1890. 

‘  New  Mexico  . 

i  • 

122,580 

153,593 

Arizona  . 

»  • 

113,020 

59,620 

Oklahoma 

t  0 

39,030 

61,834 

UNORGANIZED  TERRITORIES. 


Area.  Population  in  1890. 

Indian  Territory  .  .  31,400  179,321 

Alaska  ....  531,409  31,795 


1  An  act  was  passed  in  Congress,  in  the  summer  of  1894,  entitling  Utah  to  enter,  at  a 
future  specified  date,  the  States  of  the  Union. 


Dates  of  some  Remarkable  Events  in  the  History  of 
the  North  American  Colonies  and  United  States 

1606  First  Charter  of  Virginia. 

1607  First  Settlement  in  Virginia. 

1620  First  Settlement  in  Massachusetts. 

1664  Taking  of  New  Amsterdam  (New  York). 

1759  Battle  of  Heights  of  Abraham  and  taking  of  Quebec. 

1775  Beginning  of  the  Revolutionary  War. 

1776  Declaration  of  Independence. 

1781  Formation  of  the  Confederation. 

1783  Independence  of  United  States  recognized. 

1787  Constitutional  Convention  at  Philadelphia. 

1788  The  Constitution  ratified  by  Nine  States. 

1789  Beginning  of  the  Federal  Government. 

1793  Invention  of  the  Cotton  Gin. 

1803  Purchase  of  Louisiana  from  France. 

1812-14  War  with  England. 

1812-15  Disappearance  of  the  Federalist  Party. 

1819  Purchase  of  Florida  from  Spain. 

1819  Steamers  begin  to  cross  the  Atlantic. 

1820  The  Missouri  Compromise. 

1828-32  Formation  of  the  Whig  Party. 

1830  First  Passenger  Railway  opened. 

1840  National  Nominating  Conventions  regularly  established. 

1844  First  Electric  Telegraph  in  operation. 

1845  Admission  of  Texas  to  the  Uniop„ 

1846-48  Mexican  War  and  Cession  of  California. 

1852-56  Fall  of  the  Whig  Party 

1854-56  Formation  of  the  Republican  Party. 

1857  Dred  Scott  decision  delivered. 

1861-65  War  of  Secession. 

1869  First  Trans-Continental  Railway  completed. 

1877  Final  withdrawal  of  Federal  troops  from  the  South. 

1879  Specie  Payments  resumed. 


xiii 


PAET  I 


THE  NATIONAL  GOVERNMENT 


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CHAPTER  I 

THE  NATION  AND  THE  STATES 

A  few  years  ago  the  American  Protestant  Episcopal  Church 
was  occupied  at  its  triennial  Convention  in  revising  its  liturgy. 
It  was  thought  desirable  to  introduce  among  the  short  sentence 
prayers  a  prayer  for  the  whole  people;  and  an  eminent  New 
England  divine  proposed  the  words  “  0  Lord,  bless  our  nation.” 
Accepted  one  afternoon  on  the  spur  of  the  moment,  the  C3n- 
tence  was  brought  up  next  day  for  reconsideration,  when  so 
many  objections  were  raised  by  the  laity  to  the  word  “nation,” 
as  importing  too  definite  a  recognition  of  national  unity,  that 
it  was  dropped,  and  instead  there  were  adopted  the  words  “  0 
Lord,  bless  these  United  States.” 

To  Europeans  who  are  struck  by  the  patriotism  and  demon¬ 
strative  national  pride  of  their  transatlantic  visitors,  this  fear 
of  admitting  that  the  American  people  constitute  a  nation 
seems  extraordinary.  But  it  is  only  the  expression  on  its  sen¬ 
timental  side  of  the  most  striking  and  pervading  characteristic 
of  the  political  system  of  the  country,  the  existence  of  a  double 
government,  a  double  allegiance,  a  double  patriotism.  America 
is  a  Commonwealth  of  commonwealths,  a  Republic  of  republics, 
a  State  which,  while  one,  is  nevertheless  composed  of  other 
States  even  more  essential  to  its  existence  than  it  is  to  theirs. 

This  is  a  point  of  so  much  consequence,  and  so  apt  to  be 
misapprehended  by  Europeans,  that  a  few  sentences  may  be 
given  to  it. 

When  within  a  large  political  community  smaller  communi¬ 
ties  are  found  existing,  the  relation  of  the  smaller  to  the  larger 
usually  appears  in  one  or  other  of  the  two  following  forms. 
One  form  is  that  of  a  League,  in  which  a  number  of  political 
bodies,  be  they  monarchies  or  republics,  are  bound  together  so 
as  to  constitute  for  certain  purposes,  and  especially  for  the  pur- 

3 


THE  NATIONAL  GOVERNMENT 


PART  I 


pose  of  common  defence,  a  single  body.  The  members  of  such 
a  composite  body  or  league  are  not  individual  men  but  com¬ 
munities.  It  exists  only  as  an  aggregate  of  communities,  and 
will  therefore  vanish  so  soon  as  the  communities  which  com¬ 
pose  it  separate  themselves  from  one  another.  Moreover  it 
deals  with  and  acts  upon  these  communities  only.  With  the 
individual  citizen  it  has  nothing  to  do,  no  right  of  taxing  him, 
or  judging  him,  or  making  laws  for  him,  for  in  all  these  matters 
it  is  to  his  own  community  that  the  allegiance  of  the  citizen  is 
due.  A  familiar  instance  of  this  form  is  to  be  found  in  the 
Germanic  Confederation  as  it  existed  from  1815  till  1866. 

In  the  second  form,  the  smaller  communities  are  mere  sub¬ 
divisions  of  that  greater  one  which  we  call  the  Nation.  They 
have  been  created,  or  at  any  rate  they  exist,  for  administrative 
purposes  only.  Such  powers  as  they  possess  are  powers  dele¬ 
gated  by  the  nation,  and  can  be  overridden  by  its  will.  The 
nation  acts  directly  by  its  own  officers,  not  merely  on  the  com¬ 
munities,  but  upon  every  single  citizen ;  and  the  nation,  because 
it  is  independent  of  these  communities,  would  continue  to  exist 
were  they  all  to  disappear.  Examples  of  such  minor  communi¬ 
ties  may  be  found  in  the  departments  of  modem  France  and 
the  counties  of  modern  England. 

The  American  Federal  Republic  corresponds  to  neither  of 
these  two  forms,  but  may  be  said  to  stand  between  them.  Its 
central  or  National  government  is  not  a  mere  league,  for  it  does 
not  wholly  depend  on  the  component  communities  which  we 
call  the  States.  It  is  itself  a  commonwealth  as  well  as  a  union 
of  commonwealths,  because  it  claims  directly  the  obedience  of 
every  citizen,  and  acts  immediately  upon  him  through  its  courts 
and  executive  officers.  Still  less  are  its  minor  communities, 
the  States,  mere  subdivisions  of  the  Union,  mere  creatures  of 
the  National  government,  like  the  counties  of  England  or  the 
departments  of  France.  They  have  over  their  citizens  an 
authority  which  is  their  own,  and  not  delegated  by  the  central 
government.  They  have  not  been  called  into  being  by  that 
government.  They  —  that  is,  the  older  ones  among  them  — 
existed  before  it.  They  could  exist  without  it. 

This  is  the  cause  of  that  immense  complexity  which  startles 
and  at  first  bewilders  the  student  of  American  institutions,  a 
complexity  which  makes  American  history  and  current  Ameri- 


CHAP.  I 


THE  NATION  AND  THE  STATES 


5 


can  politics  difficult  to  the  European,  who  finds  in  them  phe¬ 
nomena  to  which  his  own  experience  supplies  no  parallel. 
There  are  two  loyalties,  two  patriotisms;  and  the  lesser  patriot¬ 
ism,  as  the  incident  in  the  Episcopal  Convention  shows,  is 
jealous  of  the  greater.  There  are  two  governments,  covering 
the  same  ground,  commanding,  with  equally  direct  authority, 
the  obedience  of  the  same  citizen. 


CHAPTER  II 


THE  ORIGIN  OF  THE  CONSTITUTION 

When  in  the  reign  of  George  III.  troubles  arose  between 
England  and  her  North  American  colonists,  there  existed  along 
the  eastern  coast  of  the  Atlantic  thirteen  little  communities,  the 
largest  of  which  (Virginia)  had  not  more  than  half  a  million  of 
free  people,  and  the  total  population  of  which  did  not  reach 
three  millions.  All  owned  allegiance  to  the  British  Crown,  all, 
except  Connecticut  and  Rhode  Island,  received  their  governors 
from  the  Crown/1  in  all,  causes  were  carried  by  appeal  from 
the  colonial  courts  to  the  English  Privy  Council.  Acts  of  the 
British  Parliament  ran  there,  as  they  now  run  in  the  British 
colonies,  whenever  expressed  to  have  that  effect,  and  could 
over-rule  such  laws  as  the  colonies  might  make.  But  practi¬ 
cally  each  colony  was  a  self-governing  commonwealth,  left  to 
manage  its  own  affairs  with  scarcely  any  interference  from 
home.  Each  had  its  legislature,  its  own  statutes  adding  to  or 
modifying  the  English  Common  Law,  its  local  corporate  life  and 
traditions,  with  no  small  local  pride  in  its  own  history  and  in¬ 
stitutions,  superadded  to  the  pride  of  forming  part  of  the  Eng¬ 
lish  race  and  the  great  free  British  realm.  Between  the  various 
colonies  there  was  no  other  political  connection  than  that  which 
arose  from  their  all  belonging  to  this  race  and  realm,  so  that 
the  inhabitants  of  each  enjoyed  in  every  one  of  the  others  the 
rights  and  privileges  of  British  subjects. 

When  the  oppressive  measures  of  the  home  government 
roused  the  colonies,  they  naturally  sought  to  organize  their 
resistance  in  common.2  Singly  they  would  have  been  an  easy 

1  In  Maryland  and  Pennsylvania,  however,  the  governor  was,  during  the 
larger  part  of  the  colonial  period,  appointed  hy  the  “  Proprietor.” 

2  There  had  been  a  congress  of  delegates  from  seven  colonies  at  Albany  in 
1754  to  deliberate  on  measures  relative  to  the  impending  war  with  France,  hut 
this,  of  course,  took  place  with  the  sanction  of  the  mother  country,  and  was 
a  purely  temporary  measure. 

6 


CHAP.  II 


THE  ORIGIN  OF  THE  CONSTITUTION 


7 


prey,  for  it  was  long  doubtful  whether  even  in  combination 
they  could  make  head  against  regular  armies.  A  congress  of 
delegates  from  nine  colonies  held  at  New  York  in  1765  was 
followed  by  another  at  Philadelphia  in  1774,  at  which  twelve 
were  represented,  which  called  itself  Continental  (for  the  name 
American  had  not  yet  become  established),  and  spoke  in  the 
name  of  “the  good  people  of  these  colonies,”  the  first  asser¬ 
tion  of  a  sort  of  national  unity  among  the  English  of  America. 
This  congress,,  in  which  from  1775  onwards  all  the  colonies 
were  represented,  was  a  merely  revolutionary  body,  called  into 
existence  by  the  war  with  the  mother  country.  But  in  1776  it 
declared  the  independence  of  the  colonies,  and  in  1777  it  gave 
itself  a  new  legal  character  by  framing  the  “  Articles  of  Con¬ 
federation  and  Perpetual  Union,”  whereby  the  thirteen  States 
(as  they  then  called  themselves)  entered  into  a  “  firm  league 
of  friendship  ”  with  each  other,  offensive  and  defensive,  while 
declaring  that  “  each  State  retains  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and  right 
which  is  not  by  this  Confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled.” 

This  Confederation,  which  was  not  ratified  by  all  the  States 
till  1781,  was  rather  a  league  than  a  National  government,  for 
it  possessed  no  central  authority  except  an  assembly  in  which 
every  State,  the  largest  and  the  smallest  alike,  had  one  vote, 
and  this  assembly  had  no  jurisdiction  over  the  individual  citi¬ 
zens.  There  was  no  Eederal  executive,  no  Federal  judiciary, 
no  means  of  raising  money  except  by  the  contributions  of  the 
States,  contributions  which  they  were  slow  to  render,  no  power 
of  compelling  the  obedience  either  of  States  or  individuals  to 
the  commands  of  Congress.  The  plan’  corresponded  to  the 
wishes  of  the  colonists,  who  did  not  yet  deem  themselves  a 
nation,  and  who  in  their  struggle  against  the  power  of  the  British 
Crown  were  resolved  to  set  over  themselves  no  other  power,  not 
even  one  of  their  own  choosing.  But  it  worked  badly  even 
while  the  struggle  lasted,  and  after  the  immediate  danger  from 
England  had  been  removed  by  the  peace  of  1783,  it  worked  still 
worse,  and  was  in  fact,  as  Washington  said,  no  better  than 
anarchy.  The  States  were  indifferent  to  Congress  and  their 
common  concerns,  so  indifferent  that  it  was  found  difficult  to 
procure  a  quorum  of  States  for  weeks  or  even  months  after  the 

t 

i 


8 


THE  NATIONAL  GOVERNMENT 


PART  I 


day  fixed  for  meeting.  Congress  was  impotent,  and  commanded 
respect  as  little  as  obedience.  Much  distress  prevailed  in  the 
trading  States,  and  the  crude  attempts  ivhich  some  legislatures 
made  to  remedy  the  depression  by  emitting  inconvertible  paper, 
by  constituting  other  articles  than  the  precious  metals  legal 
tender,  and  by  impeding  the  recovery  of  debts,  aggravated  the 
evil,  and  in  several  instances  led  to  seditious  outbreaks.  The 
fortunes  of  the  country  seemed  at  a  lower  ebb  than  even  during 
the  war  with  England. 

Sad  experience  of  their  internal  difficulties,  and  of  the  con¬ 
tempt  with  which  foreign  governments  treated  them,  at  last 
produced  a  feeling  that  some  firmer  and  closer  union  was 
needed.  A  convention  of  delegates  from  five  States  met  at 
Annapolis  in  Maryland  in  1786  to  discuss  methods  of  enabling 
Congress  to  regulate  commerce,  which  suffered  grievously  from 
the  varying  and  often  burdensome  regulations  imposed  by  the 
several  States.  It  drew  up  a  report  which  condemned  the  ex¬ 
isting  state  of  things,  declared  that  reforms  were  necessary, 
and  suggested  a  further  general  convention  in  the  following 
year  to  consider  the  condition  of  the  Union  and  the  needed 
amendments  in  its  Constitution.  Congress,  to  which  the 
report  had  been  presented,  approved  it,  and  recommended  the 
States  to  send  delegates  to  a  convention,  which  should  “revise 
the  Articles  of  Confederation,  and  report  to  Congress  and  the 
several  legislatures  such  alterations  and  provisions  therein  as 
shall,  when  agreed  to  in  Congress  and  confirmed  by  the  States, 
render  the  Federal  Constitution  adequate  to  the  exigencies  of 
government  and  the  preservation  of  the  Union.” 

The  Convention  thus  summoned  met  at  Philadelphia  on  the 
14th  May,  1787,  became  competent  to  proceed  to  business  on 
May  25th,  when  seven  States  were  represented,  and  chose 
George  Washington  to  preside.  Delegates  attended  from 
every  State  but  Rhode  Island,  and  among  these  delegates 
was  to  be  found  from  nearly  all  the  best  intellect  and  the 
ripest  political  experience  the  United  States  then  contained. 
The  instructions  they  had  received  limited  their  authority  to 
the  revision  of  the  Articles  of  Confederation  and  the  proposing 
to  Congress  and  the  State  legislatures  such  improvements  as 
were  required  therein.  But  with  admirable  boldness,  boldness 
doubly  admirable  in  Englishmen  and  lawyers,  the  majority 


CHAT.  II 


THE  ORIGIN  OF  TIIE  CONSTITUTION 


9 


ultimately  resolved  to  disregard  these  restrictions,  and  to  pre- 
pare  a  wholly  new  Constitution,  to  be  considered  and  ratified 
neither  by  Congress  nor  by  the  State  legislatures,  but  bv  the 
peoples  of  the  several  States. 

This  famous  assembly,  which  consisted  of  fifty-five  delegates 
thirty-nine  of  whom  signed  the  Constitution  which  it  drafted’ 
sat  nearly  five  months,  and  expended  upon  its  work  an  amount 
of  labour  and  thought  commensurate  with  the  magnitude  of 
the  task  and  the  splendour  of  the  result.  The  debates  were 
secret,  a  proof  of  the  confidence  reposed  in  the  members ;  and 
it  was  well  that  they  were  secret,  for  criticism  from  without 
might  have  imperilled  a  work  which  seemed  repeatedly  on  the 
point  of  breaking  down,  so  great  were  the  difficulties  encoun¬ 
tered  from  the  divergent  sentiments  and  interests  of  different 

parts  of  the  country,  as  well  as  of  the  larger  and  smaller 
states. 

y '  It  is  hard  to-day,  even  for  Americans,  to  realize  how  enor- 
mous  those  difficulties  were.  The  Convention  had  not  only  to 
create  de  novo,  on  the  most  slender  basis  of  pre-existing  national 
institutions,  a  National  government  for  a  widely  scattered  peo¬ 
ple  but  they  had  in  doing  so  to  respect  the  fears  and  jealousies 
and  apparently  irreconcilable  interests  of  thirteen  separate 
commonwealths,  to  all  of  whose  governments  it  was  necessary 
to  leave  a  sphere  of  action  wide  enough  to  satisfy  a  deep-rooted 
local  sentiment,  yet  not  so  wide  as  to  imperil  national  unity. 
Well  might  Hamilton  say :  “  The  establishment  of  a  Constitu¬ 
tion,  in  time  of  profound  peace,  by  the  voluntary  consent  of  a 
whole  people,  is  a  prodigy  to  the  completion  of  which  I  look 
forward  with  trembling  anxiety.” 2  And  well  might  he  quote 


be  also  seen  the  draft  of  the  Constitution  with  the 


vvasnmgton,  wnere  may 
signatures  of  the  thirty.. 


nine  delegates. 


2  Federalist,  No.  lxxxv. 


10 


THE  NATIONAL  GOVERNMENT 


PART  I 


the  words  of  David  Hume  ( Essays ;  “The  Rise  of  Arts  and 
Sciences  ” ) :  “  To  balance  a  large  State  or  society,  whether 
monarchical  or  republican,  on  general  laws,  is  a  work  of  so 
great  difficulty  that  no  human  genius,  however  comprehensive, 
is  able  by  the  mere  dint  of  reason  and  reflection  to  effect  it. 
The  judgments  of  many  must  unite  in  the  work ;  experience 
must  guide  their  labour;  time  must  bring  it  to  perfection;  and 
the  feeling  of  inconveniences  must  correct  the  mistakes  which 
they  inevitably  fall  into  in  their  first  trials  and  experiments.” 

It  was  even  a  disputable  point  whether  the  colonists  were 
already  a  nation  or  only  the  raw  material  out  of  which  a  nation 
might  be  formed.1  There  were  elements  of  unity,  there  were 
also  elements  of  diversity.  All  spoke  the  same  language.  All, 
except  a  few  descendants  of  Dutchmen  and  Swedes  in  New 
York  and  Delaware,  some  Germans  in  Pennsylvania,  some 
children  of  Drench  Huguenots  in  New  England  and  the  Middle 
States,  belonged  to  the  same  race.2  All,  except  some  Roman 
Catholics  in  Maryland,  professed  the  Protestant  religion.  All 
were  governed  by  the  same  English  Common  Law,  and  prized 
it  not  only  as  the  bulwark  which  had  sheltered  their  forefathers 
from  the  oppression  of  the  Stuart  kings,  but  as  the  basis  of 
their  more  recent  claims  of  right  against  the  encroachments 
of  George  III.  and  his  colonial  officers.  In  ideas  and  habits 
of  life  there  was  less  similarity,  but  all  were  republicans,  manag¬ 
ing  their  affairs  by  elective  legislatures,  attached  to  local  self- 
government,  and  animated  by  a  common  pride  in  their  success¬ 
ful  resistance  to  England,  which  they  then  hated  with  a  true 
family  hatred,  a  hatred  to  which  her  contemptuous  treatment 
of  them  added  a  sting. 

On  the  other  hand  their  geographical  position  made  commu¬ 
nication  very  difficult.  The  sea  was  stormy  in  winter ;  the 
roads  were  bad ;  it  took  as  long  to  travel  by  land  from 

1  Mr.  Wilson  said  in  the  Pennsylvania  Convention  of  1787 :  “  By  adopting 
this  Constitution  we  shall  become  a  nation ;  we  are  not  now  one.  We  shall 
form  a  national  character;  we  are  now  too  dependent  on  others.”  He  pro¬ 
ceeds  with  a  remarkable  prediction  of  the  influence  which  American  freedom 
would  exert  upon  the  Old  World.  —  Elliot’s  Debates,  vol.  ii.  p.  526. 

2  The  Irish,  a  noticeable  element  in  North  Carolina  and  parts  of  Pennsyl¬ 
vania,  Virginia,  and  New  Hampshire,  were  not  Catholic  Celts  hut  Scoto-Irish 
Presbyterians  from  Ulster,  who,  animated  by  resentment  at  the  wrongs  and 
religious  persecution  they  had  suffered  at  home,  had  been  among  the  foremost 
combatants  in  the  Revolutionary  War. 


CHAP.  II 


THE  ORIGIN  OF  THE  CONSTITUTION 


11 


Charleston  to  Boston  as  to  cross  the  ocean  to  Europe,  nor  was 
the  journey  less  dangerous.  The  wealth  of  some  States  con¬ 
sisted  in  slaves,  of  others  in  shipping ;  while  in  others  there 
was  a  population  of  small  farmers,  characteristically  attached 
to  old  habits.  Manufactures  had  hardly  begun  to  exist.  The 
sentiment  of  local  independence  showed  itself  in  intense  sus¬ 
picion  of  any  external  authority ;  and  most  parts  of  the  country 
were  so  thinly  peopled  that  the  inhabitants  had  lived  practi¬ 
cally  without  any  government,  and  thought  that  in  creating 
one  they  would  be  forging  fetters  for  themselves.  But  while 
these  diversities  and  jealousies  made  union  difficult,  two  dan¬ 
gers  were  absent  which  have  beset  the  framers  of  constitutions 
for  other  nations.  There  were  no  reactionary  conspirators  to 
be  feared,  for  every  one  prized  liberty  and  equality.  There 
were  no  questions  between  classes,  no  animosities  against  rank 
and  wealth,  for  rank  and  wealth  did  not  exist. 

It  was  inevitable  under  such  circumstances  that  the  Consti¬ 
tution,  while  aiming  at  the  establishment  of  a  durable  central 
power,  should  pay  great  regard  to  the  existing  centrifugal 
forces.  It  was  and  remains  what  its  authors  styled  it,  emi¬ 
nently  an  instrument  of  compromises ;  it  is  perhaps  the  most 
successful  instance  in  history  of  what  a  judicious  spirit  of 
compromise  may  effect.  Yet  out  of  the  point  which  it  was  for 
this  reason  obliged  to  leave  unsettled  there  arose  fierce  controver¬ 
sies,  which  after  two  generations,  when  accumulated  irritation 
and  incurable  misunderstanding  had  been  added  to  the  force  of 
material  interests,  burst  into  flame  in  the  War  of  Secession. 

The  draft  Constitution  was  submitted,  as  its  last  article  pro¬ 
vided,  to  conventions  of  .the  several  States  (i.e.  bodies  specially 
chosen  by  the  people  for  the  purpose)  for  ratification.  It  was 
to  come  into  effect  as  soon  as  nine  States  had  ratified,  the 
effect  of  which  would  have  been,  in  case  the  remaining  States, 
or  any  of  them,  had  rejected  it,  to  leave  such  States  standing 
alone  in  the  world,  since  the  old  Confederation  was  of  course 
superseded  and  annihilated.  Fortunately  all  the  States  did 
eventually  ratify  the  new  Constitution,  but  two  of  the  most 
important,  Virginia  and  New  York,1  did  not  do  so  till  the 

1  Virginia  was  then  much  the  largest  State  (population  in  1790,  747,610). 
New  York  was  reckoned  among  the  smaller  States  (population  340,120)  but 
her  central  geographical  position  made  her  adhesion  extremely  important. 


12 


THE  NATIONAL  GOVERNMENT 


PART  I 


middle  of  1788,  after  nine  others  had  already  accepted  it ; 
and  two,  North  Carolina  and  Rhode  Island,  at  first  refused,  and 
only  consented  to  enter  the  new  Union  more  than  a  year  later, 
when  the  government  it  had  created  had  already  come  into 
operation. 

There  was  a  struggle  everywhere  over  the  adoption  of  the 
Constitution,  a  struggle  presaging  the  birth  of  the  two  great 
parties  that  for  many  years  divided  the  American  people. 
The  chief  source  of  hostility  was  the  belief  that  a  strong  cen¬ 
tral  government  endangered  both  the  rights  of  the  States  and 
the  liberties  of  the  individual  citizen.  Freedom,  it  was  de¬ 
clared,  would  perish,  freedom  rescued  from  George  III.  would 
perish  at  the  hands  of  her  own  children.  Consolidation  (for 
the  word  centralization  had  not  yet  been  invented)  would 
extinguish  the  State  governments  and  the  local  institutions 
they  protected.  The  feeling  was  very  bitter,  and  in  some 
States,  notably  in  Massachusetts  and  New  York,  the  majori¬ 
ties  were  dangerously  narrow.  Had  the  decision  been  left  to 
what  is  now  called  “  the  voice  of  the  people,”  that  is,  to  the 
mass  of  the  citizens  all  over  the  country,  voting  at  the  polls, 
the  voice  of  the  people  would  probably  have  pronounced 
against  the  Constitution,  and  this  would  have  been  still  more 
likely  if  the  question  had  been  voted  on  everywhere  upon  the 
same  day,  seeing  that  several  doubtful  States  were  influenced 
by  the  approval  which  other  States  had  already  given.  But 
the  modern  method  of  taking  the  popular  judgment  had  not 
been  invented.  The  question  was  referred  to  conventions  in 
the  several  States.  The  Conventions  were  composed  of  able 
men,  who  listened  to  thoughtful  arguments,  and  were  them¬ 
selves  influenced  by  the  authority  of  their  leaders.  The  coun¬ 
sels  of  the  wise  prevailed  over  the  prepossessions  of  the 
multitude.  Yet  these  counsels  would  hardly  have  prevailed 
but  for  a  cause  which  is  apt  to  be  now  overlooked.  This  was 
the  dread  of  foreign  powers.1  The  United  States  had  at  that 
time  two  European  monarchies,  Spain  and  England,  as  its 

1  The  other  chief  cause  was  the  economic  distress  and  injury  to  trade  conse¬ 
quent  on  the  disorganized  condition  of  several  States.  See  the  observations 
of  Mr.  Wilson  in  the  Pennsylvania  Convention  (Elliot’s  Debates,  ii.  524).  He 
shows  that  the  case  was  one  of  necessity,  and  winds  up  with  the  remark, 
“The  argument  of  necessity  is  the  patriot’s  defence  as  well  as  the  tyrant’s 
plea.” 


ciiap.  ii 


THE  ORIGIN  OE  THE  CONSTITUTION 


13 


neighbours  on  the  American  continent.  France  had  lately 
held  territories  to  the  north  of  them  in  Canada,  and  to  the 
south  and  west  of  them  in  Louisiana.1  She  had  been  their 
ally  against  England,  she  became  in  a  few  years  again  the 
owner  of  territories  west  of  the  Mississippi.  The  fear  of 
foreign  interference,  the  sense  of  weakness,  both  at  sea  and  on 
land,  against  the  military  monarchies  of  Europe,  was  constantly 
before  the  mind  of  American  statesmen,  and  made  them  anx¬ 
ious  to  secure  at  all  hazards  a  National  government  capable  of 
raising  an  army  and  navy,  and  of  speaking  with  authority  on 
behalf  of  the  new  republic.  It  is  remarkable  that  the  danger 
of  European  aggression  or  complications  was  far  more  felt  in 
the  United  States  from  1783  down  till  about  1820,  than  it  has 
been  during  the  last  half  century  when  steam  has  brought 
Europe  five  times  nearer  than  it  then  was. 

Several  of  the  conventions  which  ratified  the  Constitution 
accompanied  their  acceptance  with  an  earnest  recommendation 
of  various  amendments  to  it,  amendments  designed  to  meet 
the  fears  of  those  who  thought  that  it  encroached  too  far  upon 
the  liberties  of  the  people.  Some  of  these  were  adopted,  im¬ 
mediately  after  the  original  instrument  had  come  into  force, 
by  the  method  it  prescribes,  viz.  a  two-thirds  majority  in  Con¬ 
gress  and  a  majority  in  three-fourths  of  the  States.  They  are 
the  amendments  of  1791,  ten  in  number,  and  they  constitute 
what  the  Americans,  following  a  venerable  English  precedent, 
call  a  Bill  or  Declaration  of  Bights. 

The  Constitution  of  1789  deserves  the  veneration  with  which 
the  Americans  have  been  accustomed  to  regard  it.  It  is  true 
that  many  criticisms  have  been  passed  upon  its  arrangement, 
upon  its  omissions,  upon  the  artificial  character  of  some  of 
the  institutions  it  creates.  Becognizing  slavery  as  an  institu¬ 
tion  existing  in  some  States,  and  not  expressly  negativing  the 
right  of  a  State  to  withdraw  from  the  Union,  it  has  been 
charged  with  having  contained  the  germ  of  civil  war,  though 
that  germ  took  seventy  years  to  come  to  maturity.  And  what¬ 
ever  success  it  has  attained  must  be  in  large  measure  ascribed 

1  The  vast  territory  then  called  Louisiana  was  transferred  by  France  to 
Spain  in  17(52,  but  Spanish  government  was  not  established  there  till  1789.  It 
was  ceded  by  Spain  to  France  in  1800,  and  purchased  by  the  United  States 
from  Napoleon  in  1803.  Spain  had  originally  held  Florida,  ceded  it  to  Britain 
in  17G3,  received  it  back  in  1783,  and  in  1819  sold  it  to  the  United  States. 


14 


THE  NATIONAL  GOVERNMENT 


PART  I 


to  the  political  genius,  ripened  by  long  experience,  of  the 
Anglo-American  race,  by  whom  it  has  been  worked,  and  who 
might  have  managed  to  work  even  a  worse-drawn  instrument. 
Yet,  after  all  deductions,  it  ranks  above  every  other  written 
constitution  for  the  intrinsic  excellence  of  its  scheme,  its  adap¬ 
tation  to  the  circumstances  of  the  people,  the  simplicity,  brev¬ 
ity,  and  precision  of  its  language,  its  judicious  mixture  of 
definiteness  in  principle  with  elasticity  in  details.  One  is 
therefore  induced  to  ask,  before  proceeding  to  examine  it,  to 
what  causes,  over  and  above  the  capacity  of  its  authors,  and 
the  patient  toil  they  bestowed  upon  it,  these  merits  are  due,  or 
in  other  words,  what  were  the  materials  at  the  command  of  the 
Philadelphia  Convention  for  the  achievement  of  so  great  an 
enterprise  as  the  creation  of  a  nation  by  means  of  an  instru¬ 
ment  of  government.  The  American  Constitution  is  no  excep¬ 
tion  to  the  rule  that  everything  which  has  power  to  win  the 
obedience  and  respect  of  men  must  have  its  roots  deep  in  the 
past,  and  that  the  more  slowly  every  institution  has  grown,  so 
much  the  more  enduring  is  it  likely  to  prove.  There  is  little 
in  this  Constitution  that  is  absolutely  new.  There  is  much 
that  is  as  old  as  Magna  Charta. 

The  men  of  the  Convention  had  the  experience  of  the  Eng¬ 
lish  Constitution.  That  Constitution,  very  different  then  from 
what  it  is  now,  was  even  then  not  quite  what  they  thought  it. 
Their  view  was  tinged  not  only  by  recollections  of  the  influ¬ 
ence  exercised  by  King  George  the  Third,  an  influence  due  to 
transitory  causes,  but  which  made  them  overrate  its  monarch¬ 
ical  element,1  but  also  by  the  presentation  of  it  which  they 
found  in  the  work  of  Mr.  Justice  Blackstone.  He,  as  was 
natural  in  a  lawyer  and  a  man  of  letters,  described  rather  its 
theory  than  its  practice,  and  its  theory  was  many  years  behind 
its  practice.  The  powers  and  functions  of  the  Cabinet,  the 
overmastering  force  of  the  House  of  Commons,  the  intimate 
connection  between  legislation  and  administration,  these  which 
are  to  us  now  the  main  characteristics  of  the  English  Consti¬ 
tution  were  still  far  from  fully  developed.  But  in  other  points 

1  There  is  a  tendency  in  colonists  to  over-estimate  the  importance  of  the 
Crown,  whose  conspicuous  position  as  the  authority  common  to  the  whole 
empire  makes  it  an  object  of  special  interest  and  respect  to  persons  living 
at  a  distance.  It  touches  their  imagination,  whereas  assemblies  excite  their 
criticism. 


CHAP.  II 


THE  ORIGIN  OF  THE  CONSTITUTION 


15 


of  fundamental  importance  they  appreciated  and  turned  to 
excellent  account  its  spirit  and  methods. 

Further,  they  had  the  experience  of  their  colonial  and  State 
governments,  and  especially,  for  this  was  freshest  and  most  in 
point,  the  experience  of  the  working  of  the  State  Constitutions, 
framed  at  or  since  the  date  when  the  colonies  threw  off  their 
English  allegiance.  Many  of  the  Philadelphia  delegates  had 
joined  in  preparing  these  instruments :  all  had  been  able  to 
watch  and  test  their  operation.  They  compared  notes  as  to  the 
merits,  tested  by^  practice,  of  the  devices  which  their  States 
had  respectively  adopted.  They  had  the  inestimable  advan¬ 
tage  of  knowing  written  or  rigid  constitutions  in  the  concrete ; 
that  is  to  say,  of  comprehending  how  a  system  of  government 
actually  moves  and  plays  under  the  control  of  a  mass  of  statu¬ 
tory  provisions  defining  and  limiting  the  powers  of  its  several 
organs.  The  so-called  Constitution, of  England  consists  largely 
of  customs,  precedents,  traditions,  understandings,  often  vague 
and  always  flexible.  It  was  quite  a  different  thing,  and  for  the 
purpose  of  making  a  constitution  for  the  American  nation  an 
even  more  important  thing,  to  have  lived  under  and  learnt  to 
work  systems  determined  by  the  hard  and  fast  lines  of  a  single 
document  having  the  full  force  of  law,  for  this  experience 
taught  them  how  much  might  safely  be  included  in  such  a 
document,  and  how  far  room  must  be  left  under  it  for  unpre¬ 
dictable  emergencies  and  unavoidable  development. 

Lastly,  they  had,  in  the  principle  of  the  English  Common 
Law  that  an  act  done  by  any  official  person  or  law-making  body 
beyond  his  or  its  legal  competence  is  simply  void,  a  key  to 
the  difficulties  involved  in  the  establishment  of  a  variety  of 
authorities  not  subordinate  to  one  another,  but  each  supreme 
in  its  own  defined  sphere.  The  application  of  this  principle 
made  it  possible  not  only  to  create  a  National  government 
which  should  leave  free  scope  for  the  working  of  the  State 
governments,'  but  also  so  to  divide  the  powers  of  the  National 
government  among  various  persons  *and  bodies  as  that  none 
should  absorb  or  overbear  the  others.  By  what  machinery 
these  objects  were  attained  will  appear  when  we  come  to  con¬ 
sider  the  effect  of  a  written  or  rigid  constitution  embodying 
a  fundamental  law,  and  the  functions  of  the  judiciary  in  ex* 
pounding  and  applying  such  a  law. 


CHAPTER  III 


NATURE  OF  THE  FEDERAL  GOVERNMENT 

The  acceptance  of  tlie  Constitution  of  1789  made  the  Ameri¬ 
can  people  a  nation.  It  turned  what  had  been  a  League  of 
States  into  a  Federal  State,  by  giving  it  a  National  govern¬ 
ment  with  a  direct  authority  over  all  citizens.  But  as  this 
National  government  was  not  to  supersede  the  governments 
of  the  States,  the  problem  which  the  constitution-makers  had 
to  solve  was  two-fold.  They  had  to  create  a  central  govern¬ 
ment.  They  had  also  to  determine  the  relations  of  this  cen¬ 
tral  government  to  the  States  as  well  as  to  the  individual 
citizen.  An  exposition  of  the  Constitution  and  criticism  of  its 
working  must  therefore  deal  with  it  in  these  two  aspects,  as  a 
system  of  National  government  built  up  of  executive  powers 
and  legislative  bodies,  like  the  monarchy  of  England  or  the 
republic  of  France,  and  as  a  Federal  system  linking  together 
and  regulating  the  relations  of  a  number  of  commonwealths 
which  are  for  certain  purposes,  but  for  certain  purposes  only, 
subordinated  to  it.  It  will  conduce  to  clearness  if  these  two 
aspects  are  kept  distinct ;  and  the  most  convenient  course  will 
be  to  begin  with  the  former,  and  first  to  describe  the  Ameri¬ 
can  system  as  a  National  system,  leaving  its  Federal  character 
for  the  moment  on  one  side. 

It  must,  however,  be  remembered  that  the  Constitution  does 
not  profess  to  be  a  complete  scheme  of  government,  creating 
organs  for  the  discharge  of  all  the  functions  and  duties  which 
a  civilized  community  undertakes.  It  presupposes  the  State 
governments.  It  assumes  their  existence,  their  wide  and  con¬ 
stant  activity.  C  It  is  a 'scheme  designed  to  provide  for  the  dis¬ 
charge  of  such  and  so  many  functions  of  government  as  the 
States  did  not,  and  indeed  could  not,  or  at  any  rate  could  not 
adequately,  possess  and  discharge/), It  is  therefore,  so  to  speak, 
the  complement  and  crown  of  the  State  Constitutions,  which 


16 


17 


4 

chap,  iii  NATURE  OF  THE  FEDERAL  GOVERNMENT 


must  be  read  along  with  it  and  into  it  in  order  to  make  it  cover 
the  whole  field  of  civil  government,  as  do  the  Constitutions  of 
such  countries  as  France,  Belgium,  Italy. 

The  administrative,  legislative,  and  judicial  functions  for 
which  the  Federal  Constitution  provides-  are  those  relating  to 
matters  which  must,  be  deemed  common  to  the  whole  nation, 
either  because  all  the  parts  of  the  nation  are  alike  interested 
in  them,  or  because  it  is  only  by  the  nation  as  a  whole  that 
they  can  be  satisfactorily  undertaken.  The  chief  of  these 
common  or  national  matters  are  1  — 

War  and  peace:  treaties  and  foreign  relations  generally. 

Army  and  navy. 

Federal  courts  of  justice. 

Commerce,  foreign  and  domestic. 

Currency. 

Copyright  and  patents. 

The  post-office  and  post  roads. 

Taxation  for  the  foregoing  purposes,  and  for  the  general 
support  of  the  government. 

The  protection  of  citizens  against  unjust  or  discriminating 
legislation  by  any  State.2 

This  list  includes  the  subjects  upon  which  the  National  legis¬ 
lature  has*  the  right  to  legislate,  the  National  executive  to 
enforce  the  Federal  laws  and  generally  to  act  in  defence  of 
national  interests,  the  National  judiciary  to  adjudicate.  All 
other  legislation  and  administration  is  left  to  the  several 
States,  without  power  of  interference  by  the  Federal  legislat¬ 
ure  or  Federal  executive. 

Such  then  being  the  sphere  of  the  National  government,  let 
us  see  in  what  manner  it  is  constituted,  of  what  departments 
it  consists. 

The  framers  of  this  government  set  before  themselves  four 
objects  as  essential  to  its  excellence,  viz. — 

Its  vigour  and  efficiency. 

The  independence  of  each  of  its  departments  (as  being  essen¬ 
tial  to  the  permanency  of  its  form). 

1  The  full  list  will  be  found  in  the  Constitution,  Art.  i.  §  8  (printed  in  tin- 
Appendix) . 

2  Amendments  xiv.  and  xv. 


c 


18 


THE  NATIONAL  GOVERNMENT 


PART  I 


Its  dependence  on  the  people. 

The  security  under  it  of  the  freedom  of  the  individual. 

The  first  of  these  objects  they  sought  by  creating  a  strong 
executive,  the  second  by  separating  the  legislative,  executive, 
and  judicial  powers  from  one  another,  and  by  the  contrivance 
of  various  checks  and  balances,  the  third  by  making  all  author¬ 
ities  elective  and  elections  frequent,  the  fourth  both  by  the 
checks  and  balances  aforesaid,  so  arranged  as  to  restrain  any 
one  department  from  tyranny,  and  by  placing  certain  rights  of 
the  citizen  under  the  protection  of  the  written  Constitution. 

They  had  neither  the  rashness  nor  the  capacity  necessary  for 
constructing  a  Constitution  a  pviovi.  There  is  wonderfully 
little  genuine  inventiveness  in  the  world,  and  perhaps  least  of 
all  has  been  shown  in  the  sphere  of  political  institutions. 
These  men,  practical  politicians  who  knew  how  infinitely  dif¬ 
ficult  a  business  government  is,  desired  no  bold  experiments. 
They  preferred,  so  far  as  circumstances  permitted,  to  walk  in 
the  old  paths,  to  follow  methods  which  experience  had  tested.1 
Accordingly  they  started  from  the  system  on  which  their  own 
colonial  governments,  and  afterwards  their  State  governments, 
had  been  conducted.  This  system  bore  a  general  resemblance 
to  the  British  Constitution ;  and  in  so  far  it  may  with  truth  be 
said  that  the  British  Constitution  became  a  model  for  the  new 
National  government.  They  held  England  to  be  the  freest  and 
best-governed  country  in  the  world,  but  were  resolved  to  avoid 
the  weak  points  which  had  enabled  King  George  III.  to  play 
the  tyrant,  and  which  rendered  English  liberty,  as  they  thought, 
far  inferior  to  that  which  the  Constitutions  of  their  own  States 
secured.  With  this  venerable  mother,  and  these  children,  bet¬ 
ter  in  their  judgment  than  the  mother,  before  their  eyes,  they 
created  an  executive  magistrate,  the  President,  on  the  model  of 
the  State  governor,  and  of  the  British  Crown.  They  created 
a  legislature  of  the  two  Houses,  Congress,  on  the  model  of  the 

l  Mr.  Lowell  has  said  with  equal  point  and  truth  of  the  men  of  the  Conven¬ 
tion:  “  They  had  a  profound  disbelief  in  theory  and  knew  better  than  to  com¬ 
mit  the  folly  of  breaking  with  the  past.  They  were  not  seduced  by  the  French 
fallacy  that  a  new  system  of  government  could  he  ordered  like  a  new  suit  of 
clothes.  They  would  as  soon  have  thought  of  ordering  a  suit  of  flesh  and  skin. 
It  is  only  on  the  roaring  loom  of  time  that  the  stuff  is  woven  for  such  a  vest¬ 
ure  of  their  thought  and  experience  as  they  were  meditating.”  Address  on 
Democracy,  delivered  Oct.  6,  1884. 


chap,  in  NATURE  OF  THE  FEDERAL  GOVERNMENT 


19 


two  Houses  of  their  State  legislatures,  and  of  the  British  Par¬ 
liament.  And  following  the  precedent  of  the  British  judges 
irremovable  except  by  the  Crown  and  Parliament  combined, 
they  created  a  judiciary  appointed  for  life,  and  irremovable 
save  by  impeachment.1 

In  these  great  matters,  however,  as  well  as  in  many  lesser 
matters,  they  copied  not  so  much  the  Constitution  of  England 
as  the  Constitutions  of  their  several  States,  in  which,  as  was 
natural,  many  features  of  the  English  Constitution  had  been 
embodied.  It  has  been  truly  said  that  nearly  every  provision 
of  the  Federal  Constitution  that  has  worked  well  is  one  bor¬ 
rowed  from  or  suggested  by  some  State  Constitution ;  nearly 
eveiy  provision  that  has  worked  badly  is  one  which  the  Con¬ 
tention,  for  want  of  a  precedent,  was  obliged  to  devise  for 
itself.  To  insist  on  this  is  not  to  detract  from  the  glory  of 
that  illustrious  body,  for  if  we  are  to  credit  them  with  less 
inventiveness  than  has  sometimes  been  claimed  for  them,  we 
must  also  credit  them  with  a  double  portion  of  the  wisdom 
which  prefers  experience  to  .a  priori  theory,  and  the  sagacity 
which  selects  the  best  materials  from  a  mass  placed  before  it, 
aptly  combining  them  to  form  a  new  structure. 

Of  minor  divergences  between  their  work  and  the  British 
Constitution  I  shall  speak  subsequently.  But  one  profound 
difference  must  be  noted  here.  The  British  Parliament  had 
always  been, -was  then,  and  remains  now,  a  sovereign  and  con¬ 
stituent  assembly.  It  can  make  and  unmake  any  and  every 
law,  change  the  form  of  government  or  the  succession  to  the 
crown,  interfere  with  the  course  of  justice,  extinguish  the  most 
sacred  private  rights  of  the  citizen.  Between  it  and  the  peo¬ 
ple  at  large  there  is  no  legal  distinction,  because  the  whole 
plenitude  of  the  people’^  rights  and  powers  resides  in  it,  just 
as  if  the  whole  nation  were  present  within  the  chamber  where 
it  sits.  In  point  of  legal  theory  it  is  the  nation,  being  the 
historical  successor  of  the  Folk  Moot  of  our  Teutonic  fore¬ 
fathers.  Both  practically  and  legally,  it  is  to-day  the  only 
and  the  sufficient  depository  of  the  authority  of  the  nation ; 

1  Minor  differences  between  the  English  and  American  systems  are  that  the 
American  Federal  judge  is  appointed  by  the  President,  “  with  the  advice  and 
consent  of  the  Senate,”  an  English  judge  by  the  Crown  alone:  an  American 
judge  is  impeachable  by  the  House  of  Representatives,  and  tried  by  the  Sen¬ 
ate,  an  English  judge  is  removable  by  the  Crown  on  an  address  by  both  Houses. 


20 


PART  I 


THE  NATIONAL  GOVERNMENT 


and  is  therefore,  within  the  sphere  of  law,  irresponsible  and 

omnipotent.  .  ,  ,  -xT  . 

In  the  American  system  there  exists  no  such  body,  hi  ot 

merely  Congress  alone,  but  also  Congress  and  the  Presiden 
conjoined,  are  subject  to  the  Constitution,  and  cannot  move  a 
step  outside  the  circle  which  the  Constitution  has  drawn 
around  them.  If  they  do,  they  transgress  the  law  and  exceed 
their  powers.  Such  acts  as  they  may  do  in  excess  ot  their 
powers  are  void,  and  may  be,  indeed  ought  to  be,  treated  as 
void  by  the  meanest  citizen^  The  only  power  which  is  ulti¬ 
mately  sovereign,  as  the  British  Parliament  is  always  an 
directly  sovereign,  is  the  people  of  the  States,  acting  m  t  le 
manner  prescribed  by  the  Constitution,  and  capable  m  that  man¬ 
ner  of  passing  any  law  whatever  in  the  form  of  a  constitutional 

amendment.  , 

This  fundamental  divergence  from  the  British  system  is 

commonly  said  to  have  been  forced  upon  the  men  of  178  /  by 
the  necessity,  in  order  to  safeguard  the  rights  of  the  severa 
States,  of  limiting  the  competence  of  the  National  government. 
But  even  supposing  there  had  been  no  States  to  be  protected, 
the  jealousy  which  the  American  people  felt  of  those  whom 
they  chose  to  govern  them,  their  fear  lest  one  power  m  the 
government  should  absorb  the  rest,  their  anxiety  to  secure 
the  primordial  rights  of  the  citizens  from  attack  either  by 
magistrate  or  by  legislature,  would  doubtless  have  led,  as  hap¬ 
pened  with  the  earlier  constitutions  of  revolutionary  I  ranee, 
to  the  creation  of  a  supreme  constitution  or  fundamental  in¬ 
strument  of  government,  placed  above  and  controlling  t  ie 
National  legislature  itself.  They  had  already  such  un  a- 
mental  instrument  in  the  charters  of  the  colonies,  which  had 
passed  into  the  Constitutions  of  the  several  States  and  they 
would  certainly  have  followed,  in  creating  their  National  Con¬ 
stitution,  a  precedent  which  they  deemed  so  precious. 

The  subjection  of  all  the  ordinary  authorities  and  organs  ot 
government  to  a  supreme  instrument  expressing  the  will  of  the 
sovereign  people,  and  capable  of  being  altered  by  them  only, 
has  been  usually  deemed  the  most  remarkable  novelty  of  the 
American  system.  But  it  is  merely  an  application,  to  t  e 
wider  sphere  of  the  nation,  of  a  plan  approved  by  the  experi¬ 
ence  of  the  several  States.  And  the  plan  had,  in  these  States, 


chap,  iii  NATURE  OF  THE  FEDERAL  GOVERNMENT 


21 


been  the  outcome  rather  of  a  slow  course  of  historical  devel¬ 
opment  than  of  conscious  determination  taken  at  any  one 
point  of  their  progress  from  petty  settlements  to  powerful 
republics.  Nevertheless,  it  may  well  be  that  the  minds  of  the 
leaders  who  guided  this  development  were  to  some  extent 
influenced  and  inspired  by  recollections  of  the  English  Com¬ 
monwealth  of  the  seventeenth  century,  which  had  seen  the 
establishment,  though  for  a  brief  space  only,  of  a  genuine 
supreme  or  rigid  Constitution,  in  the  form  of  the  famous  In¬ 
strument  of  Government  of  a.d.  1653,  and  some  of  whose 
sages  had  listened  to  the  discourses  in  which  James  Harring¬ 
ton,  one  of  the  most  prescient  minds  of  that  great  age,  showed 
the  necessity  for  such  a  constitution,  and  laid  down  its  princi¬ 
ples,  suggesting  that,  in  order  to  give  it  the  higher  authority, 
it  should  be  subscribed  by  the  people  themselves. 

We  may  now  proceed  to  consider  the  several  departments  of 
the  National  government.  It  will  be  simplest  to  treat  of  each 
separately,  and  then  to  examine  the  relations  of  each  to  the 
others,  reserving  for  subsequent  chapters  an  account  of  the 
relations  of  the  National  government  as  a  whole  to  the  several 
States. 


CHAPTER  IV 


THE  PRESIDENT 

Every  one  who  undertakes  to  describe  the  American  system 
of  government  is  obliged  to  follow  the  American  division  of  it 
into  the  three  departments  —  Executive,  Legislative,  Judicial. 

I  begin  with  the  executive,  as  the  simplest  of  the  three. 

The  President  is  the  creation  of  the  Constitution  of^  1789. 
Under  the  Confederation  there  was  only  a  presiding  officer  of 

Congress,  but  no  head  of  the  nation. 

Why  was  it  thought  necessary  to  have  a  President  at  all  . 
The  fear  of  monarchy,  of  a  strong  government,  of  a  centralized 
government,  prevailed  widely  in  1787.  George  III.  was  an 
object  of  hatred:  he  remained  a  bogey  to  succeeding  genera¬ 
tions  of  American  children.  The  Convention  found,  it  ex¬ 
tremely  hard  to  devise  a  satisfactory  method  of  choosing  the 
President,  nor  has  the  method  they  adopted  proved  satisfactory. 
That  a  single  head  is  not  necessary  to  a  republic  might  have 
been  suggested  to  the  Americans  by  those  ancient  examples  to 
which  they  loved  to  recur.  The  experience  of  modern  Switzer¬ 
land  has  made  it  still  more  obvious  to  us  now.  Yet  it  was 
settled  very  early  in  the  debates  of  1787  that  the  central  execu¬ 
tive  authority  must  be  vested  in  one  person ;  and  the  oppo¬ 
nents  of  the  draft  Constitution,  while  quarrelling  with  his 

powers,  did  not  accuse  his  existence.  .  # 

The  explanation  is  to  be  found  not  so  much  in  a  wish  to 
reproduce  the  British  Constitution  as  in  the  familiarity  of  the 
Americans,  as  citizens  of  the  several  States,  with  the  office  of  . 
State  governor  (in  some  States  then  called  President)  and  in 
their  disgust  with  the  feebleness  which  Congress  had  shown 
under  the  Confederation  in  its  conduct  of  the  war,  and,  after 
peace  was  concluded,  of  the  general  business  of  the  country. 
Opinion  called  for  a  man,  because  an  assembly  had  been  found 
22 


CHAP.  IV 


THE  PRESIDENT 


23 


to  lack  promptitude  and  vigour.  And  it  may  be  conjectured 
that  the  alarms  felt  as  to  the  danger  from  one  man’s  predomi¬ 
nance  were  largely  allayed  by  the  presence  of  George  Washing¬ 
ton.  Even  while  the  debates  were  proceeding,  every  one  must 
have  thought  of  him  as  the  proper  person  to  preside  over  the 
Union  as  he  was  then  presiding  over  the  Convention.  The  crea¬ 
tion  of  the  office  would  seem  justified  by  the  existence  of  a  person 
exactly  fitted  to  fill  it,  one  whose  established  influence  and  ripe 
judgment  would  repair  the  faults  then  supposed  to  be  charac¬ 
teristic  of  democracy,  its  impulsiveness,  its  want  of  respect  for 
authority,  its  incapacity  for  pursuing  a  consistent  line  of  action. 

Hamilton  felt  so  strongly  the  need  for  having  a  vigorous  ex¬ 
ecutive  who  could  maintain  a  continuous  policy,  as  to  suggest 
that  the  head  of  the  state  should  be  appointed  for  good  behav¬ 
iour,  i.e.  for  life,  subject  to  removal  by  impeachment.  The 
idea  was  disapproved,  though  it  received  the  support  of  persons 
so  democratically-minded  as  Madison  and  Edmund  Randolph ; 
but  nearly  all  sensible  men,  including  many  who  thought  better 
of  democracy  than  Hamilton  himself  did,  admitted  that  the 
risks  of  foreign  war,  risks  infinitely  more  serious  in  the  in¬ 
fancy  of  the  Republic  than  they  have  subsequently  proved, 
required  the  concentration  of  executive  powers  into  a  single 
hand.  And  the  fact  that  in  every  one  of  their  commonwealths 
there  existed  an  officer  in  whom  the  State  Constitution  vested 
executive  authority,  balancing  him  against  the  State  legislat¬ 
ure,  made  the  establishment  of  a  Federal  chief  magistrate 
seem  the  obvious  course. 

Assuming  that  there  was  to  be  such  a  magistrate,  the  states¬ 
men  of  the  Convention,  like  the  solid  practical  men  they  were, 
did  not  try  to  construct  him  out  of  their  own  brains,  but  looked 
to  some  existing  models.  They  therefore  made  an  enlarged 
copy  of  the  State  governor,  or  to  put  the  same  thing  differ¬ 
ently,  a  reduced  and  improved  copy  of  the  English  king.  He 
is  George  III.  shorn  of  a  part  of  his  prerogative  by  the  inter¬ 
vention  of  the  Senate  in  treaties  and  appointments,  of  another 
part  by  the  restriction  of  his  action  to  Federal  affairs,  while 
his  dignity  as  well  as  his  influence  are  diminished  by  his  hold¬ 
ing  office  for  four  years,  instead  of  for  life.1  His  salary  is  too 

1  When  the  Romans  got  rid  of  their  king,  they  did  not  really  extinguish  the 
office,  hut  set  up  in  their  consul  a  sort  of  annual  king,  limited  not  only  by  the 


24 


THE  NATIONAL  GOVERNMENT 


PART  I 


small  to  permit  him  either  to  maintain  a  Court  or  to  corrupt 
the  legislature ;  nor  can  he  seduce  the  virtue  of  the  citizens 
by  the  gift  of  titles  of  nobility,  for  such  titles  are  altogether 
forbidden.  Subject  to  these  precautions,  he  was  meant  by  the 
constitution-framers  to  resemble  the  State  governor  and  the 
British  king,  not  only  in  being  the  head  of  the  executive,  but 
in  standing  apart  from  and  above  political  parties.  He  was 
to  represent  the  nation  as  a  whole,  as  the  governor  represented 
the  State  commonwealth.  The  independence  of  his  position, 
with  nothing  either  to  gain  or  to  fear  from  Congress,  would, 
it  was  hoped,  set  him  free  to  think  only  of  the  welfare  of  the 
people. 

This  idea  appears  in  the  method  provided  for  the  election 
of  a  President.  To  have  left  the  choice  of  the  chief  magis¬ 
trate  to  a  direct  popular  vote  over  the  whole  country  would 
have  raised  a  dangerous  excitement,  and  would  have  given  too 
much  encouragement  to  candidates  of  merely  popular  gifts. 
To  have  entrusted  it  to  Congress  would  have  not  only  sub¬ 
jected  the  executive  to  the  legislature  in  violation  of  the  prin¬ 
ciple  which  requires  these  departments  to  be  kept  distinct,  but 
have  tended  to  make  him  the  creature  of  one  particular  faction 
instead  of  the  choice  of  the  nation.  Hence  the  device  of  a 
double  election  was  adopted.  The  Constitution  directs  each 
State  to  choose  a  number  of  presidential  electors  equal  to  the 
number  of  its  representatives  in  both  Houses  of  Congress. 
Some  weeks  later,  these  electors  meet  in  each  State  on  a  day 
fixed  by  law,  and  give  their  votes  in  writing  for  the  President 
and  Vice-President.1  The  votes  are  transmitted,  sealed  up, 
to  the  capital  and  there  opened  by  the  president  of  the  Senate 
in  the  presence  of  both  Houses  and  counted.  To  preserve  the 

short  duration  of  his  power,  but  also  by  the  existence  of  another  consul  with 
equal  powers.  So  the  Americans  hoped  to  restrain  their  President  not  merely 
by  the  shortness  of  his  term,  hut  also  by  diminishing  the  power  which  they 
left  to  him ;  and  this  they  did  by  setting  up  another  authority  to  which  they 
entrusted  certain  executive  functions,  making  its  consent  necessary  to  the 
validity  of  certain  classes  of  the  President’s  executive  acts.  This  is  the 
Senate,  whereof  more  anon. 

1  Originally  the  person  who  received  most  votes  was  deemed  to  have  been 
chosen  President,  and  the  person  who  stood  second,  Vice-President.  This  led 
to  confusion,  and  was  accordingly  altered  by  the  twelfth  constitutional  amend¬ 
ment,  adopted  in  1804,  which  provides  that  the  President  and  Vice-President 
shall  be  voted  for  separately 


CHAP.  IV 


THE  PRESIDENT 


25 


electors  from  the  influence  of  faction,  it  is  provided  that  they 
shall  not  be  members  of  Congress,  nor  holders  of  any  Federal 
office.  .  This  plan  was  expected  to  secure  the  choice  by  the 
best  citizens  of  each  State,  in  a  tranquil  and  deliberate  way, 
of  the  man  whom  they  in  their  unfettered  discretion  should 
deem  fittest  to  be  chief  magistrate  of  the  Union.  Being  them¬ 
selves  chosen  electors  on  account  of  their  personal  merits, 
they  would  be  better  qualified  than  the  masses  to  select  an 
able  and  honourable  man  for  President.  Moreover,  as  the 
votes  are  counted  promiscuously,  and  not  by  States,  each  elec¬ 
tor’s  voice  would  have  its  weight.  He  might  be  in  a  minority 
in  his  own  State,  but  his  vote  would  nevertheless  tell  because 
it  would  be  added  to  those  given  by  electors  in  other  States 
for  the  same  candidate. 

No  part  of  their  scheme  seems  to  have  been  regarded  by  the 
constitution-makers  of  1787  with  more  complacency  than  this,1 
although  no  part  had  caused  them  so  much  perplexity.  No 
part  has  so  utterly  belied  their  expectations.  The  presidential 
electors  have  become  a  mere  cog-wheel  in  the  machine ;  a  mere 
contrivance  for  giving  effect  to  the  decision  of  the  people. 
Their  personal  qualifications  are  a  matter  of  indifference. 

They  have  no  discretion,  but  are  chosen  under  a  pledge _ a 

pledge  of  honour  merely,  but  a  pledge  which  has  never  (since 
1796)  been  violated—  to  vote  for  a  particular  candidate.  In 
choosing  them  the  people  virtually  choose  the  President,  and 
thus  the  very  thing  which  the  men  of  1787  sought  to  prevent 
has  happened,  the  President  is  chosen  by  a  popular  vote. 
Let  us  see  how  this  has  come  to  pass. 

In  the  first  two  presidential  elections  (in  1789  and  1792)  the 
independence  of  the  electors  did  not  come  into  question,  because 
everybody  was  for  Washington,  and  parties  had  not  yet  been 
fully  developed.  Yet  in  the  election  of  1792  it  was  generally 
understood  that  electors  of  one  way  of  thinking  were  to  vote 
for  Clinton  as  their  second  candidate  (i.e.  for  Vice-President) 
and  those  of  the  other  side  for  John  Adams.  In  the  third 

1  “  The  mode  of  appointment  of  the  chief  magistrate  of  the  United  States  is 
almost  the  only  part  of  the  system  which  has  escaped  without  some  censure, 
or  which  has  received  the  slightest  mark  of  approbation  from  its  opponents.” 

Federalist ,  No.  lxvii.,  cf.  No.  1;  and  see  the  observations  of  Mr.  Wilson  in 
the  Convention  of  Pennsylvania ;  Elliot’s  Debates,  vol.  ii. 


26 


THE  NATIONAL  GOVERNMENT 


PART  1 


election  (1796)  no  pledges  were  exacted  from  electors,  but  the 
election  contest  in  which  they  were  chosen  was  conducted  on 
party  lines,  and  although,  when  the  voting  by  the  electors 
arrived,  some  few  votes  were  scattered  among  other  persons, 
there  were  practically  only  two  presidential  candidates  before 
the  country,  John  Adams  and  Thomas  Jefferson,  for  the 
former  of  whom  the  electors  of  the  Federalist  party,  for  the 
latter  those  of  the  Republican  (Democratic) 1  party  were 
expected  to  vote. 

The  fourth  election  was  a  regular  party  struggle,  carried 
on  in  obedience  to  party  arrangements.  Both  Federalists 
and  Republicans  put  the  names  of  their  candidates  for  Presi¬ 
dent  and  Vice-President  before  the  country,  and  round  these 
names  the  battle  raged.  The  notion  of  leaving  any  freedom 
or  discretion  to  the  electors  had  vanished,  for  it  was  felt  that 
an  issue  so  great  must  and  could  be  decided  by  the  nation 
alone.  From  that  day  till  now  there  has  never  been  any 
question  of  reviving  the  true  and  original  intent  of  the  plan 
of  double  election.  Even  in  1876  the  suggestion  that  the  dis¬ 
puted  election  might  be  settled  by  leaving  the  electors  free 
to  choose,  found  no  favour.  Hence  nothing  has  ever  turned 
on  the  personality  of  the  electors.  They  are  now  so  little 
significant  that  to  enable  the  voter  to  know  for  which  set  of 
electors  his  party  desires  him  to  vote,  it  is  customary  to  put 
the  name  of  the  presidential  candidate  whose  interest  they 
represent  at  the  top  of  the  voting  ticket  on  which  their  own 
names  are  printed.  Nor  need  this  extinction  of  the  discre¬ 
tion  of  the  electors  be  regretted,  because  what  has  happened  in 
somewhat  similar  cases  makes  it  certain  that  the  electors  would 
have  so  completely  fallen  under  the  control  of  the  party  organ¬ 
izations  as  to  vote  simply  at  the  bidding  of  the  party  managers. 
Popular  election  is  therefore,  whatever  may  be  its  defects,  a 
healthier  method,  for  it  enables  the  people  to  reject  candidates 
whom  the  low  morality  of  party  managers  would  approve. 

The  completeness  and  permanence  of  this  change  has  been 
assured  by  the  method  which  now  prevails  of  choosing  the 
electors.  The  Constitution  leaves  the  method  to  each  State, 

1  The  party  then  called  the  Republican  has  for  the  last  sixty  years  or  so 
been  called  Democratic.  The  party  now  called  Republican  did  not  arise  till 
1854. 


CIIAP.  IT 


THE  PRESIDENT 


27 


and  in  the  earlier  days  many  States  entrusted  the  choice  to 
their  legislatures,  hut  as  democratic  principles  became  devel¬ 
oped,  the  practice  of  choosing  the  electors  by  direct  popular 
vote,  originally  adopted  by  Virginia,  Pennsylvania,  and  Mary¬ 
land,  spread  by  degrees  through  the  other  States,  till  by  1832 
South  Carolina  was  the  only  State  which  retained  the  method 
of  appointment  by  the  legislature.  She  dropped  it  in  1868, 
and  popular  election  now  rules  everywhere,  though  any  State 
may  go  back  to  the  old  plan  if  it  pleases.1  In  some  States  the 
electors  were  for  a  time  chosen  by  districts,  like  members  of 
the  House  of  Representatives.  But  the  plan  of  choice  by  a 
single  popular  vote  over  the  whole  of  the  State  found  increas¬ 
ing  favour,  seeing  that  it  was  in  the  interest  of  the  party  for 
the  time  being  dominant  in  the  State.  In  1828  Maryland  was 
the  only  State  which  clung  to  district  voting.  She,  too, 
adopted  the  “  general  ticket  ”  system  in  1832,  since  which  year 
it  was  universal  until  1891,  when  Michigan  reverted  to  the 
district  system,  the  then  dominant  party  in  her  legislature  con¬ 
ceiving  that  they  would  thereby  secure  some  districts,  and 
therefore  some  electors  of  their  own  colour,  although  they 
could  not  carry  the  State  as  a  whole.2  (This  in  fact  happened 
in  1892.)  Thus  the  issue  comes  directly  before  the  people. 
The  parties  nominate  their  respective  candidates,  as  hereafter 
described,  a  tremendous  “campaign”  of  stump  speaking,  news¬ 
paper  writing,  street  parades,  and  torchlight  processions  sets  in 
and  rages  for  about  four  months  :  the  polling  for  electors  takes 
place  early  in  November,  on  the  same  day  over  the  whole  Union, 
and  when  the  result  is  known  the  contest  is  over,  because  the 
subsequent  meeting  and  voting  of  the  electors  in  their  several 
States  is  mere  matter  of  form. 

So  far  the  method  of  choice  by  electors  may  seem  to  be 
merely  a  roundabout  way  of  getting  the  judgment  of  the 
people.  It  is  more  than  this.  It  has  several  singular  conse¬ 
quences,  unforeseen  by  the  framers  of  the  Constitution.  It 
has  made  the  election  virtually  an  election  by  States,  for  the 

1  Colorado,  not  having  time,  after  her  admission  to  the  Union  in  1876,  to 
provide  by  law  for  a  popular  choice  of  electors  to  vote  in  the  election  of  a 
President  in  the  November  of  that  year,  left  the  choice  to  the  legislature,  but 
now  elects  its  presidential  electors  by  popular  vote  like  the  other  States. 

2  Michigan  repealed  this  law  in  1893,  and  now  elects  by  “  general  ticket.” 


28 


THE  NATIONAL  GOVERNMENT 


PART  I 


system  of  choosing  electors  by  “  general  ticket  ”  over  the  whole 
State  usually  causes  the  whole  weight  of  a  State  to  be  thrown 
into  the  scale  of  one  candidate,  that  candidate  whose  list  of  elec¬ 
tors  is  carried  in  the  given  State.1  In  the  election  of  1884,  New 
York  State  had  thirty-six  electoral  votes.  Each  party  ran  its  list 
or  “  ticket  ”  of  thirty-six  presidential  electors  for  the  State,  who 
were  bound  to  vote  for  the  party’s  candidate,  Mr.  Blaine  or 
Mr.  Cleveland.  The  Democratic  list  was  carried  by  a  majority 
of  1100  out  of  a  total  poll  exceeding  1,100,000.  Thus,  all  the 
thirty-six  electoral  votes  of  New  York  were  secured  for  Mr. 
Cleveland,  and  these  thirty-six  determined  the  issue  of  the 
struggle  over  the  whole  Union,  in  which  nearly  10,000,000 
popular  votes  were  cast.  The  hundreds  of  thousands  of  votes 
given  in  New  York  for  the  Blaine  or  Bepublican  list  did  not 
go  to  swell  the  support  which  Mr.  Blaine  obtained  in  other 
States,  but  were  utterly  lost.  Hence  in  a  presidential  election 
the  struggle  concentrates  itself  in  the  doubtful  States,  where 
the  great  parties  are  pretty  equally  divided,  and  is  languid  in 
States  where  a  distinct  majority  either  way  may  be  anticipated, 
because,  since  it  makes  no  difference  whether  a  minority  be 
large  or  small,  it  is  not  worth  while  to  struggle  hard  to  increase 
a  minority  which  cannot  be  turned  into  a  majority.  And 
hence  also  a  man  may  be,  and  has  been,2  elected  President  by 
a  minority  of  popular  votes. 

When  such  has  been  the  fate  of  the  plan  of  1787,  it  need 
hardly  be  said  that  the  ideal  President,  the  great  and  good 
man  above  and  outside  party,  whom  the  judicious  and  im-* 
partial  electors  were  to  choose,  has  not  been  secured.  The 

1  A  list  is  usually  carried  entire  if  carried  at  all,  because  it  would  be  foolish 
for  the  partisans  of  a  candidate  to  vote  for  some  only  and  not  for  all  of  the 
electors  whose  only  function  is  to  vote  for  him.  However,  the  electors  on  a 
ticket  seldom  receive  exactly  the  same  number  of  popular  votes ;  and  thus  it 
sometimes  happens  that  when  the  election  is  close,  one  or  two  electors  of  the 
beaten  party  find  their  way  in.  In  California  in  1880  one  out  of  the  six  elec¬ 
tors  in  the  Democratic  ticket,  being  personally  unpopular,  failed  to  be  carried, 
though  the  other  five  were.  Similarly  in  California,  Ohio,  and  Oiegon  in  18.(2 
one  elector  belonging  to  the  defeated  list  was  chosen,  and  in  North  Dakota 
was  presented  the  surprising  spectacle  of  the  Republican,  Democratic,  and 
“  Populist  ”  parties  each  winning  one  elector. 

2  This  happened  in  1876,  when  Mr.  Hayes  received,  on  the  showing  of  his 
own  partisans,  252,000  popular  votes  less  than  those  given  for  Mr.  Tilden; 
and  in  1888,  when  Mr.  Harrison  was  95,534  popular  votes  behind  Mr.  Cleve¬ 
land. 


CHAP.  IV 


THE  PRESIDENT 


29 


ideal  was  realized  once  and  once  only  in  the  person  of  George 
Washington.  His  successor  in  the  chair  (John  Adams)  was  a 
leader  of  one  of  the  two  great  parties  then  formed,  the  other 
of  which  has,  with  some  changes,  lasted  down  to  our  own  time. 
Jefferson,  who  came  next,  was  the  chief  of  that  other  party, 
and  his  election  marked  its  triumph.  Nearly  every  subse¬ 
quent  President  has  been  elected  as  a  party  leader  by  a  party 
vote,  and  has  felt  bound  to  carry  out  the  policy  of  the  men  who 
put  him  in  power.1  Thus  instead  of  getting  an  Olympian  Presi¬ 
dent  raised  above  faction,  America  has,  despite  herself,  repro¬ 
duced  the  English  system  of  executive  government  by  a  party 
majority,  reproduced  it  in  a  more  extreme  form,  because  in 
England  the  titular  head  of  the  State,  in  whose  name  adminis¬ 
trative  acts  are  done,  stands  in  isolated  dignity  outside  party 
politics.  The  disadvantages  of  the  American  plan  are. patent; 
but  in  practice  they  are  less  serious  than  might  be  expected, 
for  the  responsibility  of  a  great  office  and  the  feeling  that 
he  represents  the  whole  nation  tend  to  sober  and  control  the 
President.  Except  as  regards  patronage,  he  has  seldom  acted 
* as  a  mere  tool  of  faction,  or  sought  to  abuse  his  administra¬ 
tive  powers  to  the  injury  of  his  political  adversaries. 

The  Constitution  prescribes  no  limit  for  the  re-eligibility  of 
the  President.  He  may  go  on  being  chosen  for  one  four-year 
period  after  another  for  the  term  of  his  natural  life.  But  tra¬ 
dition  has  supplied  the  place  of  law.  Elected  in  1789,  Wash¬ 
ington  submitted  to  be  re-elected  in  1792.  But  when  he  had 
served  this  second  term  he  absolutely  refused  to  serve  a  third, 
urging  the  risk  to  republican  institutions  of  suffering  the  same 
man  to  continue  constantly  in  office.  Jefferson,  Madison,  Mon¬ 
roe,  and  Jackson  obeyed  the  precedent,  and  did  not  seek,  nor 
their  friends  for  them,  re-election  after  two  terms.  After  them 
no  President  was  re-elected,  except  Lincoln,  down  to  General 
Grant.  Grant  was  President  from  1869  to  1873,  and  again 
from  1873  to  1877,  then  came  Mr.  Hayes;  and  in  1880  an 
attempt  was  made  to  break  the  unwritten  rule  in  Grant’s 

1  James  Monroe  was  chosen  President  in  1820  with  practical  unanimity; 
but  this  was  because  one  of  the  two  parties  had  for  the  time  been  crushed  out 
and  started  no  candidate.  So  also  J.  Q.  Adams,  Monroe’s  successor,  can  hardly 
be  called  a  party  leader.  After  him  the  party-chosen  Presidents  go  on  with¬ 
out  interruption. 


30 


THE  NATIONAL  GOVERNMENT 


PART  i 


favour.  Each  party  nominates  its  candidates  in  a  gigantic 
party  assembly  called  the  National  Convention.  In  the  Re¬ 
publican  party  Convention  of  1880  a  powerful  group  of  the 
delegates  put  forward  Grant  for  nomination  as  the  party  can¬ 
didate,  alleging  his  special  services  as  a  ground  for  giving  him 
the  honour  of  a  third  term.  Had  there  not  been  among  the 
Republicans  themselves  a  section  personally  hostile  to  Grant, 
or  rather  to  those  who  surrounded  him,  the  attempt  might  have 
succeeded,  though  it  would  probably  have  involved  defeat  at 
the  polls.  But  this  hostile  section  found  the  prepossession  of 
the  people  against  a  third  term  so  strong  that,  by  appealing 
to  the  established  tradition,  they  defeated  the  Grant  men  in  the 
Convention,  and  obtained  the  nomination  of  Mr.  Garfield,  who 
was  victorious  at  the  ensuing  election.  This  precedent  had 
been  taken  as  practically  decisive  for  the  future,  because  Gen¬ 
eral  Grant,  though  his  administration  had  been  marked  by 
grave  faults,  was  an  exceptionally  popular  figure. 

The  Constitution  (Amendment  xii.,  which  in  this  point 
repeats  the  original  Art.  xi.  §  1)  requires  for  the  choice  of 
a  President  “a  majority  of  the  whole  number  of  electors 
appointed.”  If  no  such  majority  is  obtained  by  any  candi¬ 
date,  i.e.  if  the  votes  of  the  electors  are  so  scattered  among 
different  candidates,  that  out  of  the  total  number  (which  in 
1888  was  401,  and  is  now  under  the  Apportionment  Act 
of  1891,  444)  no  one  receives  an  absolute  majority  (i.e.  at 
least  223  votes),  the  choice  goes  over  to  the  House  of  Rep¬ 
resentatives,  who  are  empowered  to  choose  a  President  from 
among  the  three  candidates  who  have  received  the  largest 
number  of  electoral  votes.  In  the  House  the  vote  is  taken 
by  States,  a  majority  of  all  the  States  (i.e.  at  present  of  twenty- 
thr^e  States  out  of  forty-five)  being  necessary  for  a  choice.  As 
all  the  members  of  the  House  from  a  State  have  but  one  col¬ 
lective  vote>  it  follows  that  if  they  are  equally  divided  among 
themselves,  the  vote  of  that  State  is  lost.  Supposing  this  to 
be  the  case  in  half  the  total  number  of  States,  or  supposing 
the  States  so  to  scatter  their  votes  that  no  candidate  Receives 
an  absolute  majority,  then  no  President  is  chosen,  and  the  Vice- 
President  becomes  President. 

Only  twice  has  the  election  gone  to  the  House.  In  1800, 
when  the  rule  still  prevailed  that  the  candidate  with  the 


CHAP.  IV 


THE  PRESIDENT 


31 


largest  number  of  votes  became  President,  and  the  candidate 
who  came  second  Vice-President,  Jefferson  and  Aaron  Burr 
received  the  same  number.  The  Jeffersonian  electors  meant 
to  make  him  President,  but  as  they  had  also  voted  for  Burr 
there  was  a  tie.  After  a  long  struggle  the  House  chose  Jeffer¬ 
son.  Feeling  ran  high,  and  had  Jefferson  been  kept  out  by 
the  votes  of  the  Federalist  party,  who  hated  him  more  than 
Burr,  his  partisans  might  possibly  have  taken  up  arms.1  In 
18H  Andrew  Jackson  had  99  electoral  votes,  and  his  three 
competitors  (J.  Q.  Adams,  Crawford,  and  Clay)  162  votes 
between  them.  The  House  chose  J.  Q.  Adams  by  a  vote  of 
thirteen  States  against  seven  for  Jackson  and  four  for  Craw¬ 
ford.  In  this  mode  of  choice,  the  popular  will  may  be  still 
less  recognized  than  it  is  by  the  method  of  voting  through 
presidential  electors,  for  if  the  twenty-three  smaller  States 
were  through  their  representatives  in  the  House  to  vote  for 
candidate  A,  and  the  twenty-one  larger  States  for  candidate 
B  A  would  be  seated,  though  the  population  of  the  former  set 
o±  States  is,  of  course,  very  much  below  that  of  the  latter. 

The  Constitution  seems,  though  its  language  is  not  explicit, 
to  have  intended  to  leave  the  counting  of  the  votes  to  the 
president  of .  the  Senate  (the  Vice-President  of  the  United 
States) ;  and  in  early  days  this  officer  superintended  the  count, 
and  decided  questions  as  to  the  admissibility  of  doubtful 
votes.  However,  Congress  has  in  virtue  of  its  right  to  be 
present  at  the  counting  assumed  the  further  right  of  deter¬ 
mining  all  questions  which  arise  regarding  the  validity  of 
electoral  votes,  and  has,  it  need  hardly  be  said,  determined 
them  on  each  occasion  from  party  motives.  This  would  be 
all  very  well  were  a  decision  by  Congress  always  certain  of 
attainment.  ^  But  it  often  happens  that  one  party  has  a  major¬ 
ity  m  the  Senate,  another  party  in  the  House,  and  then,  as 


.  The  vo^  of  States  were  for  a  long  time  divided;  but  Hamilton’s 
influence  at  last  induced  the  Federalist  members  to  abstain  from  voting 
against  Jefferson,  whom  he  thought  less  dangerous  than  Burr.  His  action 

nghly  patriotic,  for  Jefferson  was  his  bitter  enemy  — cost  him  his  life  at 
Burr  s  hands. 

2  CJay,  unlucky  throughout  in  his  ambitions  for  the  presidency,  had  stood 
fourth  in  the  electoral  vote,  and  so  could  not  be  chosen  by  the  House.  Jack- 

son  had  received  the  largest  popular  vote  in  those  States  where  electors  were 
chosen  by  the  people. 


32 


THE  NATIONAL  GOVERNMENT 


PART  i 


the  two  Houses  vote  separately  and  each  differently  from  the 
other,  a  deadlock  results.  I  must  pass  by  the  minute  and 
often  tedious  controversies  which  have  arisen  on  these  mat¬ 
ters.  But  one  case  deserves  special  mention,  for  it  illustrates 
an  ingrained  and  formidable  weakness  of  the  present  electoral 

s;y  Mr  Hayes  was  the  Republican  candidate  for  the 

presidency,  Mr.  Tilden  the  Democratic.  The  former  carried 
his  list  of  electors  in  seventeen  States,  whose  aggregate  elec¬ 
tors  numbered  163,  and  the  latter  carried  his  list  also  in  seven¬ 
teen  States,  whose  aggregate  electors  numbered  184  _  (As  the 
total  number  of  electors  was  then  369,  184  was  within  one  of 
being  a  half  of  that  number.)  Dour  States  remained  out  of 
the  total  thirty-eight,  and  in  each  of  these  four  two  sets  of  per¬ 
sons  had  been  chosen  by  popular  vote,  each  set  claiming,  on 
grounds  too  complicated  to  be  here  explained,  to  be  the  duly 
chosen  electors  from  those  States  respectively.1  The  electoral 
votes  of  these  four  States  amounted  to  twenty-two,  so  that  if 
in  any  one  of  them  the  Democratic  set  of  electors  had  been 
found  to  have  been  duly  chosen,  the  Democrats  would  have 
secured  a  majority  of  electoral  votes,  whereas  even  if  in  all 
of  them  Republican  electors  had  been  chosen,  the  Republican 
electors  would  have  had  a  majority  of  one  only.  In  such  cir¬ 
cumstances  the  only  course  for  the  Republican  leaders,  as  good 
party  men,  was  to  claim  all  these  doubtful  States.  This  they 
promptly  did,  —  party  loyalty  is  the  last  virtue  that  deserts 

politicians,  —  and  the  Democrats  did  the  like. 

Meanwhile  the  electors  met  and  voted  in  their  respective 
States.  In  the  four  disputed  States  the  two  sets  of  electors 
met,  voted,  and  sent  up  to  Washington,  from,  each  of  these 
four,  double  returns  of  the  electoral  votes.  The  result  of  the 
election  evidently  depended  on  the  question  which  set  of 
returns  should  be  admitted  as  being  the  true  and  legal  returns 
from  the  four  States  respectively.  The  excitement  over  the 
whole  Union  was  intense,  and  the  prospect  of  a  peaceful  set- 

i  In  Oreo-on  the  question  was  whether  one  of  the  chosen  electors  was  dis¬ 
qualified  because  he  was  a  postmaster.  In  Florida  there  were  complaints  of 
fraud  in  South  Carolina  of  intimidation,  in  Louisiana  two  rival  State  govern¬ 
ments’  existed,  each  claiming  the  right  to  certify  electoral  returns.  There  had 
doubtless  been  a  good  deal  of  fraud  and  some  violence  in  several  of  the  South¬ 
ern  States. 


CHAP.  IV 


THE  PRESIDENT 


33 


tlement  remote,  for  the  Constitution  appeared  to  provide  no 
means  of  determining  the  legal  questions  involved.  Congress, 
as  remarked  above,  had  in  some  previous  instances  assumed 
jurisdiction,  but  seeing  that  the  Republicans  had  a  majority  in 
the  Senate,  and  the  Democrats  in  the  House  of  Representa¬ 
tives,  it  was  clear  that  the  majority  in  one  House  would  vote 
for  admitting  the  Republican  returns,  the  majority  in  the 
other  for  admitting  the  Democratic.  Negotiations  between 
the  leaders  at  last  arranged  a  method  of  escape.  A  statute 
was  passed  creating  an  electoral  commission  of  five  Senators, 
five  members  of  the  House  of  Representatives,  and  five  Jus¬ 
tices  of  the  Supreme  Court,  who  were  to  determine  all  ques¬ 
tions  as  to  the  admissibility  of  electoral  votes  from  States 
sending  up  double  returns.1  Everything  now  turned  on  the 
composition  of  the  electoral  Commission,  a  body  such  as  had 
never  before  been  created.  The  Senate  appointed  three  Re¬ 
publicans  and  two  Democrats.  The  House  of  Representatives 
appointed  three  Democrats  and  two  Republicans.  So  far  there 
was  an  exact  balance.  The  statute  had  indicated  four  of  the 
Justices  who  were  to  sit,  two  Republicans  and  two  Democrats, 
and  had  left  these  four  to  choose  a  fifth.  This  fifth  was  the 
odd  man  whose  casting  vote  would  turn  the  scale.  The  four 
Justices  chose  a  Republican  Justice,  and  this  choice  practi¬ 
cally  settled  the  result,  for  every  vote  given  by  the  members 
of  the  Commission  was  a  strict  party  vote.2 

The  legal  questions  were  so  difficult,  and  for  the  most  part 
so  novel,  that  it  was  possible  for  a  sound  lawyer  and  honest 
man  to  take  in  each  case  either  the  view  for  which  the  Repub¬ 
licans  or  that  for  which  the  Democrats  contended.  Still  it  is 
interesting  to  observe  that  the  legal  judgment  of  every  com¬ 
missioner  happened  to  coincide  with  his  party  proclivities.  All 
the  points  in  dispute  were  settled  by  a  vote  of  eight  to  seven 
in  favour  of  the  returns  transmitted  by  the  Republican  electors 

1  Power  was  reserved  to  Congress  to  set  aside  by  a  vote  of  both  Houses  the 
decisions  of  the  Commission,  but  as  the  two  Houses  differed  in  every  case, 
the  Democrats  of  the  House  always  voting  against  each  determination  of  the 
Commission,  and  the  Republicans  of  the  Senate  supporting  it,  this  provision 
made  no  difference. 

2  The  Commission  'decided  unanimously  that  the  Democratic  set  of  electors 
from  South  Carolina  were  not  duly  chosen,  but  they  divided  eight  to  seven  as 
usual  on  the  question  of  recognizing  the  Republican  electors  of  that  State. 

D 


34 


THE  NATIONAL  GOVERNMENT 


PART  I 


in  the  four  disputed  States,  and  Mr.  Hayes  was  accordingly 
declared  duly  elected  by  a  majority  of  185  electoral  votes 
against  184.  The  decision  may  have  been  right  as  matter  of 

laWj _ it  is  still  debated  by  lawyers,  —  and  there  had  been  so 

much  force  and  fraud  on  both  sides  in  Honda,  Louisiana,  and 
South  Carolina,  that  no  one  can  say  on  which  side  substantial 
justice  lay.  Mr.  Tilden  deserves  the  credit  of  having  induced 
his  friends  both  to  agree  to  a  compromise  slightly  to  his  own 
disadvantage,  and  to  accept  peaceably,  though  with  loud  and 
long  complaints,  a  result  which  baffled  their  hopes. 

I  tell  the  story  here  because  it  points  to  a  grave  danger  in 
the  presidential  system.  The  stake  played  for  is  so  high  that 
the  temptation  to  fraud  is  immense ;  and  as  the  ballots  given 
for  the  electors  by  the  people  are  received  and  counted  by 
State  authorities  under  State  laws,  an  unscrupulous  State 
faction  has  opportunities  for  fraud  at  its  command.  In  1887 
Congress,  having  had  the  subject  pressed  upon  its  attention  by 
successive  Presidents,  took  steps  to  provide  against  a  recur¬ 
rence  of  the  danger  described.  It  passed  a  statute  enacting 
that  tribunals  appointed  in  and  by  each  State  shall  determine 
what  electoral  votes  from  the  State  are  legal  votes;  and  that  if 
the  State  has  appointed  no  such  tribunal,  the  two  Houses  of 
Congress  shall  determine  which  votes  (in  case  of  double  returns) 
are  legal.  If  the  Houses  differ  the  vote  of  the  State  is  lost. 
It  is,  of  course,  possible  under  this  plan  that  the  State  tiibunal 
may  decide  unfairly ;  but  the  main  thing  is  to  secure  some 
decision.  Unfairness  is  better  than  uncertainty. 

A  President  is  removable  during  his  term  of  office  only  by 
means  of  impeachment,  a  procedure  familiar  on  both  sides  of 
the  Atlantic  in  1787,  when  the  famous  trial  of  Warren  Hast¬ 
ings  was  still  lingering  on  at  Westminster.  Impeachment, 
which  had  played  no  small  part  in  the  development  of  English 
liberties,  was  deemed  by  the  Americans  of  those  days  a  valuable 
element  in  their  new  Constitution,  for  it  enabled  Congress  to 
depose,  and  the  fear  of  it  might  be  expected  to  restrain,  a  tiea- 
sonably  ambitious  President.  In  obedience  to  State  precedents, 

1  Impeachment  was  taken,  not  directly  from  English  usage,  hut  rather  from 
the  Constitutions  of  Virginia  (1776)  and  Massachusetts  (1780),  which  had,  no 
doubt  following  the  example  of  England,  established  this  remedy  against  cul¬ 
pable  officials. 


CHAP.  IV 


THE  PRESIDENT 


35 


it  is  by  the  House  of  Representatives  that  the  President  is 
impeached,  and  by  the  Senate,  sitting  as  a  law  court,  with 
the  Chief  Justice  of  the  Supreme  Court,  the  highest  legal 
official  of  the  country,  as  presiding  officer,  that  he  is  tried.  A 
two-thirds  vote  is  necessary  to  conviction,  the  effect  of  which 
is  simply  to  remove  him  from  and  disqualify  him  for  office, 
leaving  him  “  liable  to  indictment,  trial,  judgment,  and  punish¬ 
ment,  according  to  law”  (Constitution,  Art.  i.  §  3,  Art.  ii.  §  4). 
The  impeachable  offences  are  “  treason,  bribery,  or  other  high 
crimes  and  misdemeanours,”  an  expression  which  some  have 
held  to  cover  only  indictable  offences,  while  others  extend  it 
to  include  acts  done  in  violation  of  official  duty  and  against 
the  interests  of  the  nation. 

As  yet,  Andrew  Johnson  is  the  only  President  who  has 
been  impeached.  His  foolish  and  headstrong  conduct  made 
his  removal  desirable,  but  as  it  was  doubtful  whether  any 
single  offence  justified  a  conviction,  several  of  the  Senators 
politically  opposed  to  him  voted  for  acquittal.  A  two-thirds 
majority  not  having  been  secured  upon  any  one  article  (the 
numbers  being  thirty-five  for  conviction,  nineteen  for  acquit¬ 
tal)  he  was  declared  acquitted. 

In  case  of  the  removal  of  a  President  by  impeachment,  or  of 
his  death,  resignation,  or  inability  to  discharge  his  :ies,  the 
Vice-President  steps  into  his  place.  The  Vice-President  is 
chosen  at  the  same  time,  by  the  same  electors,  and  in  the  same 
manner  as  the  President.  His  only  functions  are  to  preside 
in  the  Senate  and  to  succeed  the  President.  Failing  both 
President  and  Vice-President  it  was  formerly  provided  by  stat¬ 
ute,  not  by  the  Constitution,  that  the  presiding  officer  for  the 
time  being  of  the  Senate  should  succeed  to  the  presidency, 
and,  failing  him,  the  Speaker  of  the  House  of  Representatives. 
To  this  plan  there  was  the  obvious  objection  that  it  might 
throw  power  into  the  hands  of  the  party  opposed  to  that  to 
which  the  lately  deceased  President  belonged ;  and  it  has  there¬ 
fore  been  now  (by  an  Act  of  1886)  enacted  that  on  the  death 
of  a  President  (including  a  Vice-President  who  has  succeeded 
to  the  Presidency)  the  Secretary  of  State  shall  succeed,  and 
after  him  other  officers  of  the  administration,  in  the  order  of 
their  rank.  Four  Presidents  (Harrison,  Taylor,  Lincoln,  Gar¬ 
field)  have  died  in  office,  and  been  succeeded  by  Vice-Presidents, 


36 


THE  NATIONAL  GOVERNMENT 


PART  i 


and  in  tlie  first  and  third  of  these  instances  the  succeeding 
Vice-President  has  reversed  the  policy  of  his  predecessor,  and 
become  involved  in  a  quarrel  with  the  party  which  elected  him, 
such  as  has  never  yet  broken  out  between  a  man  elected  to  be 
President  and  his  party.  In  practice  very  little  pains  are 
bestowed  on  the  election  of  a  Vice-President.  The  convention 
which  selects  the  party  candidates  usually  gives  the  nomina¬ 
tion  to  this  post  to  a  man  in  the  second  rank,  sometimes  as  a 
consolation  to  a  disappointed  candidate  for  the  presidential 
nomination,  sometimes  to  a  friend  of  such  a  disappointed  can¬ 
didate  in  order  to  “  placate  ”  his  faction,  sometimes  as  a  com¬ 
pliment  to  an  elderly  leader  who  is  personally  popular.  If 
the  party  carries  its  candidate  for  President,  it  also  as  a  matter 
of  course  carries  its  candidate  for  Vice-President,  and  thus 
if  the  President  happens  to  die,  a  man  of  small  account  may 
step  into  the  chief  magistracy  of  the  nation. 


CHAPTER  V 


f 


PRESIDENTIAL  POWERS  AND  DUTIES 

The  powers  and  duties  of  the  President  as  head  of  the 
Federal  executive  are  the  following:  — 

Command  of  Federal  army  and  navy  and  of  militia  of  several 
States  when  called  into  service  of  the  United  States. 

Power  to  make  treaties,  but  with  advice  and  consent  of  the  " 
Senate,  i.e.  consent  of  two-thirds  of  Senators  present. 

“  to  appoint  ambassadors  and  consuls,  Judges  of  Supreme" 
Court,  and  all  other  higher  Federal  officers,  but  with 
advice  and  consent  of  Senate. 

“  to  grant  reprieves  and  pardons  for  offences  against  the'' 
United  States,  except  in  cases  of  impeachment. 

“  to  convene  both  Houses  on  extraordinary  occasions. 

“  to  disagree  with  (i.e.  to  send  back  for  reconsideration) 
any  bill  or  resolution  passed  by  Congress,  but  subject  to 
the  power  of  Congress  to  finally  pass  the  same,  after  re¬ 
consideration,  by  a  two-thirds  majority  in  each  House. 

Duty  to  inform  Congress  of  the  state  of  the  Union,  and  to 
recommend  measures  to  Congress. 

“  to  commission  all  the  officers  of  the  United  States. 

“  to  receive  foreign  ambassadors.  / 

“  to  take  care  that  the  laws  be  faithfully  executed. 

These  functions  group  themselves  into  four  classes  — - 
Those  which  relate  to  foreign  affairs. 

Those  which  relate  to  domestic  administration. 

Those  which  concern  legislation. 

The  power  of  appointment. 

The  conduct  of  foreign  policy  would  be  a  function  of  the 
utmost  importance  did  not  America,  happy  America,  stand 
apart  in  a  world  of  her  own,  unassailable  by  European  powers, 

37 


38 


THE  NATIONAL  GOVERNMENT 


PART  I 


easily  superior  to  the  other  republics  of  her  continent,  but  with 
no  present  motive  for  aggression  upon  them.  The  President, 
however,  has  not  a  free  hand  in  foreign  policy.  He  cannot 
declare  war,  for  that  belongs  to  Congress,  though  to  be  sure  he 
may,  as  President  Polk  did  in  1845—6,  bring  affairs  to  a  point 
at  which  it  is  hard  for  Congress  to  refrain  from  the  declaration. 
Treaties  require  the  approval  of  two-thirds  of  the  Senate ;  and 
in  order  to  secure  this,  it  is  usually  necessary  for  the  Executive 
to  be  in  constant  communication  with  the  Foreign  Affairs  Com¬ 
mittee  of  that  body.  The  House  of  Representatives  has  no 
legal  right  to  interfere,  but  it  often  passes  resolutions  enjoin¬ 
ing  or  disapproving  a  particular  line  of  policy  ;  and  sometimes 
invites  the  Senate  to  coincide  in  these  expressions  of  opinion, 
which  then  become  weightier. 

The  President  is  nowise  bound  by  such  resolutions,  and  has 
more  than  once  declared  that  he  does  not  regard  them.  But  as 
some  treaties,  especially  commercial  treaties,  cannot  be  carried 
out  except  by  the  aid  of  statutes,  and  as  no  war  can  be  entered 
on  without  votes  of  money,  the  House  of  Representatives  can 
sometimes  indirectly  make  good  its  claim  to  influence.  Many 
delicate  questions,  some  of  them  not  yet  decided,  have  arisen  upon 
these  points,  which  the  Constitution  has,  perhaps  unavoidably, 
left  in  half-light.  In  all  free  countries  it  is  most  difficult  to 
define  the  respective  spheres  of  the  legislature  and  executive 
in  foreign  affairs,  for  while  publicity  and  parliamentary  control 
are  needed  to  protect  the  people,  promptitude  and  secrecy  are 
the  conditions  of  diplomatic  success.  Practically,  however, 
and  for  the  purposes  of  ordinary  business,  the  President  is  in¬ 
dependent  of  the  House,  while  the  Senate,  though  it  can  pre¬ 
vent  his  settling  anything,  cannot  keep  him  from  unsettling 
everything.  He,  or  rather  his  Secretary  of  State,  for  the  Presi¬ 
dent  has  rarely  leisure  to  give  close  or  continuous  attention  to 
foreign  policy,  retains  an  unfettered  initiative,  by  means  of 
which  he  may  embroil  the  country  abroad  or  excite  passion  at 
home. 

The  domestic  authority  of  the  President  is  in  time  of  peace 
small,  because  by  far  the  larger  part  of  law  and  administration 
belongs  to  the  State  governments,  and  because  Eederal  admin¬ 
istration  is  regulated  by  statutes  which  leave  little  discretion 
to  the  executive.  In  war  time,  however,  and  especially  in  a  civil 


CHAP.  V 


PRESIDENTIAL  POWERS  AND  DUTIES 


39 


wai,  it  expands  with  portentous  speed.  Both  as  commander-in- 
chief  of  the  army  and  navy,  and  as  charged  with  the  “faithful 
execution  of  the  laws/’  the  President  is  likely  to  be  led  to 
assume  all  the  powers  which  the  emergency  requires.  How 
much  he  can  legally  do  without  the  aid  of  statutes  is  disputed, 
for  the  acts  of  President  Lincoln  during  the  earlier  part  of  the 
War  of  Secession,  including  his  proclamation  suspending  the 
writ  of  habeas  corpus,  were  subsequently  legalized  by  Con¬ 
gress  ;  but  it  is  at  least  clear  that  Congress  can  make  him,  as 
it  did  make  Lincoln,  almost  a  dictator^  And  how  much  the 
war  power  may  include  appears  in  this,  that  by  virtue  of  it 
and  without  any  previous  legislative  sanction  President  Lincoln 
issued  his  emancipation  proclamations  of  1862  and  1863,  declar¬ 
ing  all  slaves  in  the  insurgent  States  to  be  thenceforth  free, 
although  these  States  were  deemed  to  be  in  point  of  law  still 
members  of  the  Union.1 

It  devolves  on  the  executive  as  well  as  on  Congress  to  give 
effect  to  the  provisions  of  the  Constitution  whereby  a  republi¬ 
can  form  of  government  is  guaranteed  to  every  State:  and  a 
State  may,  on  the  application  of  its  legislature,  or  executive 
(when  the  legislature  cannot  be  convened),2  obtain  protection 
against  domestic  violence.  Where,  as  in  Louisiana  in  1873, 
there  aie  two  governments  disputing  by  force  the  control  of  a 
State,  or  where  an  insurrection  breaks  out,  as  in  Bhode  Island 
m  1840-2,  this  power  becomes  an  important  one,  for  it  involves 
the  employment  of  troops,  and  enables  the  President  (since  it 
is  usually  on  him  that  the  duty  falls)  to  establish  the  govern¬ 
ment  he  prefers  to  recognize.3  Fortunately  the  case  has  been 
of  rare  occurrence. 

The  President  has  the  right  of  speaking  to  the  nation  by 
addresses  or  proclamations,  a  right  not  expressly  conferred 
by  the  Constitution,  but  inherent  in  his  position.  Occasions 

1  The  proclamation  was  expressed  not  to  apply  to  States  which  had  not 
seceded  nor  to  such  parts  of  seceding  States  as  had  then  already  been  recon¬ 
quered  by  the  Northern  armies.  Slavery  was  finally  legally  extinguished 
everywhere  by  the  thirteenth  constitutional  amendment  of  1865 

2  Const.  Art.  iv.  §  4. 

3  In  the  Louisiana  case  Federal  troops  were  employed :  in  the  Rhode  Island 
case  the  President  authorized  the  employment  of  the  militia  of  Massachusetts 
anJ~  yonnecticut,  but  the  Rhode  Island  troops  succeeded  in  suppressing  the 
rebellion  whose  leader  was  ultimately  convicted  of  high  treason  against  the 
State  and  imprisoned. 


40 


PART  I 


THE  NATIONAL  GOVERNMENT 


requiring  its  exercise  are  uncommon.  On  entering  office,  it  is 
usual  for  the  new  magistrate  to  issue  an  inaugural  address, 
stating  his  views  on  current  public  questions.  Washington 
also  put  forth  a  farewell  address,  but  Jackson’s  imitation  of 
that  famous  document  was  condemned  as  a  piece  of  vainglory. 
It  is  thought  bad  taste  for  the  President  to  deliver  stump 
speeches,  and  Andrew  Johnson  injured  himself  by  the  prac¬ 
tice.  But  he  retains  that  and  all  other  rights  of  the  ordinary 
citizen,  including  the  right  of  voting  at  Federal  as  well  as 
State  elections  in  his  own  State.  And  he  has  sometimes  taken 
an  active,  though  a  covert,  share  in  the  councils  of  his  own 

party.  _  .  .  , . 

The  position  of  the  President  as  respects  legislation  is  a 

peculiar  one.  The  King  of  England  is  a  member  of  the  Eng¬ 
lish  legislature,  because  Parliament  is  in  theory  his  Great 
Council  which  he  summons  and  in  which  he  presides,  hearing 
the  complaints  of  the  people,  and  devising  legislative  reme¬ 
dies.1  It  is  as  a  member  of  the  legislature  that  he  assents  to 
the  bills  it  presents  to  him,  and  the  term  “veto  power,  since 
it  suggests  an  authority  standing  outside  to  approve  or  reject, 
does  not  happily  describe  his  right  of  dealing  with  a  measure 
which  has  been  passed  by  the  council  over  which  he  is  deemed 
to  preside,  though  he  now  no  longer  appears  in  it  except  at  the 
beginning  and  ending  of  a  session.  The  American  President 
is  not  a  member  of  either  House  of  Congress.  He  is  a  sepa¬ 
rate  authority  whom  the  people,  for  the  sake  of  protecting 
themselves  against  abuses  of  legislative  power,  have  associated 
with  the  legislature  for  the  special  purpose  of  arresting  its 
action  by  his  disapproval.2  So  again  the  King  of  England  can 
initiate  legislation.  According  to  the  older  Constitution,  stat¬ 
utes  purported  to  be  made,  and  were  till  the  middle  of  the 
fifteenth  century  actually  made,  by  him,  but  “  with  the  advice 
and  consent  of  the  Lords  Spiritual  and  Temporal  and  of  the 


1  It  need  hardly  he  said  that  the  actual  separation  of  Parliament  into  two 
branches,  each  of  which  deliberates  apart  under  the  presidency  of  its  own 
chairman  (the  chairman  of  one  House  named  by  the  sovereign  whom  he 
represents,  that  of  the  other  chosen  by  the  House,  hut  approved  by  the  sover¬ 
eign),  does  not  exclude  the  theory  that  the  King,  Lords,  and  Commons  con 

tute  the  common  council  of  the  nation.  >  ,  , 

2  The  term  “  veto  ”  was  not  used  in  the  Convention  of  1787:  men  talked  of 

the  President’s  “  qualified  negative. ” 


cnAP.  v 


PRESIDENTIAL  POWERS  AND  DUTIES 


41 


Commons.”  According  to  modern  practice,  nearly  all  impor¬ 
tant  measures  are  brought  into  Parliament  by  his  ministers, 
and  nominally  under  his  instructions.  The  American  Presi¬ 
dent  cannot  introduce  bills,  either  directly  or  through  his  min¬ 
isters,  for  they  do  not  sit  in  Congress.1  All  that  the  Constitu¬ 
tion  permits  him  to  do  in  this  direction  is  to  inform  Congress 
of  the  state  of  the  nation,  and  to  recommend  the  measures 
which  his  experience  in  administration  shows  to  be  necessary. 
This  latter  function  is  discharged  by  the  messages  which  the 
Piesident  addresses  to  Congress.  The  most  important  is  that 
sent  at  the  beginning  of  each  session. 

George  Washington  used  to  deliver  his  addresses  orally, 
like  an  English  king,  and  drove  in  a  coach  and  six  to  open 
Congress  with  something  of  an  English  king’s  state.  But 
Jefferson,  when  his  turn  came  in  1801,  whether  from  republi¬ 
can  simplicity,  as  he  said  himself,  or  because  he  was  a  poor 
speaker,  as  his  critics  said,  began  the  practice  of  sending  com¬ 
munications  in  writing  ;  and  this  has  been  followed  ever  since. 
The  message  usually  discusses  the  leading  questions  of  the 
moment,,  indicates  mischiefs  needing  a  remedy,  and  suggests 
the  requisite  legislation.  But  as  no  bills  are  submitted  by  the 
Piesident,  and  as,  even  were  he  to  submit  them,  no  one  of  his 
ministers  sits  in  either  House  to  explain  and  defend  them,  the 
message  is  a  shot  in  the  air  without  practical  result.  It  is 
rather  a  manifesto,  or  declaration  of  opinion  and  policy,  than 
a  step  towards  legislation.  Congress  is  not  moved  :  members 
go  their  own  ways  and  bring  in  their  own  bills. 

Far  more  effective  is  the  President’s  part  in  the  last  stage  of 
legislation,  fox  here  he  finds  means  provided  for  carrying  out 
his  will.  When  a  bill  is  presented  to  him,  he  may  sign  it,  and 
therewith  make  it  law.  If,  however,  he  disapproves  of  it,  he 


« 'ri  N®^ert.heless;  the  Congressional  Globe  for  July  14,  1862.  records  that 
I  lie  President  ( pro  tempore)  of  the  Senate  presented  the  following  message 
from  the  President  of  the  United  States  :  ‘  Fellow  Citizens  of  the  Senate  and 
the  House  of  Representatives :  Herewith  is  the  draft  of  a  bill  to  compensate 
any  State  which  may  abolish  slavery  within  its  limits,  the  passage  of  which, 
substantially  as  presented,  I  respectfully  and  earnestly  recommend.  Abraham 
.Lincoln.  The  bill  was  thereupon  read  a  second  time,  and  a  debate  arose 
as  to  whether  the  President  had  a  right  to  submit  bills.  In  the  House  the 
message  as  a  whole  was  referred  t.o  the  Special  Committee  on  Emancipation. 
1ms  seems  to  be  the  only  instance  in  which  a  President  has  submitted  a  draft 


42 


THE  NATIONAL  GOVERNMENT 


PART  I 


returns  it  within  ten  days  to  the  House  in  which  it  originated, 
with  a  statement  of  his  grounds  of  disapproval.  If  both  Houses 
take  up  the  bill  again  and  pass  it  by  a  two-thirds  majority  in  each 
House,  it  becomes  law  forthwith  without  requiring  the  Presi¬ 
dent’s  signature.1  If  it  fails  to  obtain  this  majority  it  drops. . 

Considering  that  the  arbitrary  use,  by  George  III.  and  his 
colonial  governors,  of  the  power  of  refusing  bills  passed  by  a 
colonial  legislature  had  been  a  chief  cause  of  the  Revolution  of 
1776,  it  is  to  the  credit  of  the  Americans  that  they  inserted 
this  apparently  undemocratic  provision  (which,  however,  ex¬ 
isted  in  the  Constitution  of  Massachusetts  of  1780)  in  the 
Constitution  of  1789.  It  has  worked  wonderfully  well.  Most 
Presidents  have  employed  it  sparingly,  and  only  where  they 
felt  either  that  there  was  a  case  for  delay,  or  that  the  country 
would  support  them  against  the  majority  in  Congress.  Per¬ 
verse  or  headstrong  Presidents  have  been  generally  defeated 
by  the  use  of  the  two-thirds  vote  to  pass  the  bill  over  their 
objections.  Washington  “  returned  ”  or  vetoed  two  bills  only  ; 
his  successors  down  till  1830,  seven.  Jackson  made  a  bolder 
use  of  his  power  —  a  use  which  his  opponents  denounced  as 
opposed  to  the  spirit  of  the  Constitution :  yet  until  the  acces¬ 
sion  of  President  Cleveland  in  1885  the  total  number  vetoed 
was  only  132  (including  the  so-called  pocket  vetoes)  in  ninety- 
six  years.2  Mr.  Cleveland  vetoed  301,  the  great  majority  being 
bills  for  granting  pensions  to  persons  who  served  in  the  North¬ 
ern  armies  during  the  War  of  Secession.3  Though  many  of 

1  If  Congress  adjourns  within  the  ten  days  allowed  the  President  for  re¬ 
turning  the  bill  it  is  lost.  His  retaining  it  under  these  circumstances  at  the 
end  of  a  session  is  popularly  called  a  “  pocket  veto.” 

a  Of  these  132  (some  reckon  128) ,  21  emanated  from  Johnson  and  43  from 
Grant,  while  John  Adams,  Jefferson,  J.  Q.  Adams,  Van  Buren,  Taylor,  and 
Fillmore  sent  no  veto  messages  at  all.  (W.  H.  Harrison  and  Garfield  died 
before  they  had  any  opportunity.)  Among  the  most  important  vetoes  were 
those  of  several  Reconstruction  bills  by  Johnson  (these-were  re-passed  by  two- 
thirds  votes) ,  that  of  a  paper  currency  measure,  the  so-called  Inflation  Bill 
by  Grant,  and  that  of  the  Dependent  Pension  Bill  by  Cleveland.  No  bill  was 
passed  “  over  a  veto  ”  until  1845.  Presidents  have  occasionally  (e.g.  Lincoln 
more  than  once)  in  signing  a  bill  stated  objections  to  it  which  Congress  has 
thereupon  obviated  by  supplementary  legislation. 

3  Out  of  these  433  vetoed  bills  only  29  were  passed  over  the  veto,  15  of  these 
in  the  time  of  Johnson. 

The  numbers  are  differently  reckoned  by  different  authorities.  I  have  here 
followed  the  calculation  of  Mr.  E.  C.  Mason,  in  his  clear  and  useful  essay  in 
Harvard  Historical  Monographs ,  Boston,  1891. 


CHAP.  V 


PRESIDENTIAL  POWERS  AND  DUTIES 


43 


these  bills  had  been  passed  with  little  or  no  opposition,  two 
only  were  re-passed  over  his  veto.  The  only  President' who 
acted  recklessly  was  Andrew  Johnson.  In  the  course  of  his 
three  years’  struggle  with  Congress,  he  returned  the  chief  bills 
passed  for  carrying  out  their  Reconstruction  policy,  but  as  the 
majority  opposed  to  him  was  large  in  both  Houses,  these  bills 
were  promptly  passed  over  his  veto. 

.  So  far  from  exciting  the  displeasure  of  the  people  by  re¬ 
sisting  the  will  of  their  representatives,  a  President  generally 
gains  popularity  by  the  bold  use  of  his  veto  power.  It  conveys 
the  impression  of  firmness ;  it  shows  that  he  has  a  view  and 
does  not  fear  to  give  effect  to  it.  The  nation,  which  has  often 
good  grounds  for  distrusting  Congress,  a  body  liable  to  be  moved 
by  sinister  private  influences,  or  to  defer  to  the  clamour  of 
some  noisy  section  outside,  looks  to  the  man  of  its  choice  to 
keep  Congress  in  order,  and  has  approved  the  extension  which 
practice  has  given  to  the  power.  The  President’s  “  qualified 
negative  ’’  was  proposed  by  the  Convention  of  1787  for  the  sake 
of  protecting  the  Constitution,  and  in  particular,  the  executive, 
from  Congressional  encroachments.  It  has  now  come  to  be 
used  on  grounds  of  general  expediency,  to  defeat  any  measure 
which  the  executive  deems  pernicious  either  in  principle  or  in 
its  probable  results. 

The  reasons  why  the  veto  provisions  of  the  Constitution 
have  succeeded  appear  to  be  two.  One  is  that  the  President, 
being  an  elective  and  not  a  hereditary  magistrate,  is  responsi¬ 
ble  to  the  people,  and  has  the  weight  of  the  people  behind  him. 
The  people  regard  him  as  an  indispensable  check,  not  only 
upon  the  haste  and  heedlessness  of  their  representatives,  the 
faults  which  the  framers  of  the  Constitution  chiefly  feared,  but 
upon  their  tendency,  a  tendency  whose  mischievous  force  ex¬ 
perience  has  revealed,  to  yield  either  to  pressure  from  any 
section  of  their  constituents,  or  to  temptations  of  a  private 
nature.  The  other  reason  is  that  a  veto  need  never  take  effect 
unless  there  is  a  minority  exceeding  one-third  in  one  or  other 
House  of  Congress,  which  agrees  with  the  President.  Such  a 
minority  shares  his  responsibility  and  encourages  him  to  resist 
the  threats  of  a  majority :  while  if  he  has  no  substantial  sup¬ 
port  in  public  opinion,  his  opposition  is  easily  overborne. 
Hence  this  arrangement  is  preferable  to  a  plan  such  as  that  of 


44 


THE  NATIONAL  GOVERNMENT 


PART  I 


the  French  Constitution  of  1791  (under  which  the  king  s  veto 
could  be  overridden  by  passing  a  bill  in  three  successive  years), 
for  enabling  the  executive  simply  to  delay  the  passing  of  a 
measure  which  may  be  urgent,  or  which  a  vast  majority  of 
the  legislature  may  desire. 

In  its  practical  working  the  presidential  veto  power  fur¬ 
nishes  an  interesting  illustration  of  the  tendency  of  unwritten 
or  flexible  constitutions  to  depart  from,  of  written  or  rigid 
constitutions  to  cleave  to,  the  letter  of  the  law.  The  strict 
legal  theory  of  the  rights  of  the  head  of  the  State  is  m  this 
point  exactly  the  same  in  England  and  in  America.  But 
whereas  it  is  now  the  undoubted  duty  of  an  English  king  to 
assent  to  every  bill  passed  by  both  Houses  of  Parliament,  how¬ 
ever  strongly  he  may  personally  disapprove  its  provisions,  it 
is  the  no  less  undoubted  duty  of  an  American  President  to 
exercise  his  independent  judgment  on  every  bill,  not  shelter¬ 
ing  himself  under  the  representatives  of  the  people,  or  forego¬ 
ing  his  own  opinion  at  their  bidding.1 

As  the  President  is  charged  with  the  whole  Federal  admin¬ 
istration,  and  responsible  for  its  due  conduct,  he  must  of 
course  be  allowed  to  choose  his  executive  subordinates.  But 
as  he  may  abuse  this  tremendous  power  the  Constitution 
associates  the  Senate  with  him,  requiring  the  “advice  and 
consent  ”  of  that  body  to  the  appointments  he  makes.2  This 
confirming  power  has  become  a  political  factor  of  the  highest 
moment.  The  framers  of  the  Constitution  probably  meant 
nothing  more  than  that  the  Senate  should  check  the  Presi¬ 
dent  by  rejecting  nominees  who  were  personally  unfit  for  the 
post  to  which  he  proposed  to  appoint  them.  The  Senate  has 
always,  except  in  its  struggle  with  President  Johnson,  left  the 
President  free  to  choose  his  Cabinet  ministers.  But  it  early 
assumed  the  right  of  rejecting  a  nominee  to  any  other  office  on 
any  ground  which  it  pleased,  as  for  instance,  if  it  disapproved 
his  political  affiliations,  or  wished  to  spite  the  President. 

Presently  the  senators  from  the  State  wherein  a  Federal  office 


1  The  practical  disuse  of  the  “  veto  power  ”  in  England  is  due  not  merely  to 
the  decline  in  the  authority  of  the  Crown,  hut  to  the  fact  that,  since  the  Revo¬ 
lution,  the  Crown  acts  only  on  the  advice  of  responsible  ministers,  who  neces¬ 
sarily  demand  a  majority  in  the  House  of  Commons. 

2  Congress  is  however  permitted  to  vest  in  the  President  alone  the  appoint¬ 
ment  to  such  “  inferior  offices  ”  as  it  thinks  fit. 


CHAP.  V 


PRESIDENTIAL  POWERS  AND  DUTIES 


45 


to  which  the  President  had  made  a  nomination  lay,  being  the 
persons  chiefly  interested  in  the  appointment,  and  most  en¬ 
titled  to  be  listened  to  by  the  rest  of  the  Senate  when  con- 
sidering  it,  claimed  to  have  a  paramount  voice  in  deciding 
whether  the  nomination  should  be  confirmed.  Their  colleagues 
approving,  they  then  proceeded  to  put  pressure  on  the  Presi¬ 
dent.  They  insisted  that  before  making  a  nomination  to  an 
office  in  any  State  he  should  consult  the  senators  from  that 
State  who  belonged  to  his  own  party,  and  be  guided  by  their 
wishes.  Such  an  arrangement  benefited  all  senators  alike,  be¬ 
cause  each  obtained  the  right  of  practically  dictating  the  ap¬ 
pointments  to  those  Federal  offices  which  he  most  cared  for, 
viz.  those  within  his  own  State ;  and  each  was  therefore 
willing  to  support  his  colleagues  in  securing  the  same  right 
for  themselves  as  regarded  their  States  respectively.  Of 
course  when  a  senator  belonged  to  the  party  opposed  to  the 
President,  he  had  no  claim  to  interfere,  because  places  are  as  a 
matter  of  course  given  to  party  adherents  only.  When  both 
senators  belonged  to  the  President’s  party  they  agreed  among 
themselves  as  to  the  person  whom  they  should  require  the 
President  to  nominate.  By  this  system,  which  obtained  the 
name  of  the  “  Courtesy  of  the  Senate,”  the  President  was  prac¬ 
tically  enslaved  as  regards  appointments,  because  his  refusal 
to  be  guided  by  the  senator  or  senators  within  whose  State  the 
office  lay  exposed  him  to  have  his  nomination  rejected. 

The  senators,  on  the  other  hand,  obtained  a  mass  of  patron¬ 
age  by  means  of  which  they  could  reward  their  partisans,  con¬ 
trol  the  Federal  civil  servants  of  their  State,  and  build  up  a 
faction  devoted  to  their  interests.1  Successive  Presidents 
chafed  under  the  yoke,  and  sometimes  carried  their  nominees 
either  by  making  a  bargain  or  by  fighting  hard  with  the  sena¬ 
tors  who  sought  to  dictate  to  them.  But  it  was  generally 
more  prudent  to  yield,  for  an  offended  senator  could  avenge  a 
defeat  by  playing  the  President  a  shrewd  trick  in  some  other 
matter ;  and  as  the  business  of  confirmation  is  transacted  in 

1  the  House  of  Representatives  could  not  allow  the  Senate  to  engross 
all  the  Federal  patronage,  there  has  heen  a  tendency  towards  a  sort  of  ar¬ 
rangement,  according  to  which  the  greater  State  offices  belong  to  the  senators, 
while  as  regards  the  lesser  ones,  lying  within  their  respective  congressional 
districts,  members  of  the  House  are  recognized  as  entitled  to  recommend 
candidates. 


46 


THE  NATIONAL  GOVEENMENT 


PART  I 


secret  session,  intriguers  have  little  fear  of  the  public  before 
their  eyes.  The  senators  might,  moreover,  argue  that  they 
knew  best  what  would  strengthen  the  party  in  their  State, 
and  that  the  men  of  their  choice  were  just  as  likely  to  be  good 
as  those  whom  some  private  friend  suggested  to  the  President. 
Thus  the  system  throve  and  still  thrives. 

It  need  hardly  be  added  that  the  “  Courtesy  of  the  Senate  ” 
would  never  have  attained  its  present  strength  but  for  the 
growth,  in  and  since  the  time  of  President  Jackson,  of  the  so- 
called  Spoils  System,  whereby  holders  of  Federal  offices  have 
been  turned  out  at  the  accession  of  a  new  President  to  make 
way  for  the  aspirants  whose  services,  past  or  future,  he  is 
expected  to  requite  or  secure  by  the  gift  of  places. 

The  right  of  the  President  to  remove  from  office  has  given 
rise  to  long  controversies  on  which  I  can  only  touch.  In  the 
Constitution  there  is  not  a  word  about  removals  j  and  veiy 
soon  after  it  had  come  into  force  the  question  arose  whether, 
as  regards  those  offices  for  which  the  confirmation  of  the 
Senate  is  required,  the  President  could  remove  without  its 
consent.  Hamilton  had  argued  in  the  Fedcvcilist  (though  there 
is  reason  to  believe  that  he  afterwards  changed  his  opinion) 
that  the  President  could  not  so  remove,  because  it  was  not 
to  be  supposed  that  the  Constitution  meant  to  give  him  so 
immense  and  dangerous  a  reach  of  power.  Madison  argued 
soon  after  the  adoption  of  the  Constitution  that  it  did  permit 
him  so  to  remove,  because  the  head  of  the  executive  must  have 
subordinates  whom  he  can  trust,  and  may  discover  in  those 
whom  he  has  appointed  defects  fatal  to  their  asefulness.  This 
was  also  the  view  of  Chief- Justice  Marshall.  When  the  ques¬ 
tion  came  to  be  settled  in  the  Senate  during  the  presidency 
of  Washington,  Congress,  influenced  perhaps  by  respect  for 
his  perfect  uprightness,  took  the  Madisonian  view  and  recog¬ 
nized  the  power  of  removal  as  vested  in  the  President  alone. 

So  matters  stood  till  a  conflict  arose  in  1866  between  Presi¬ 
dent  Johnson  and  the  Republican  majority  in  both  Houses  of 
Congress.  In  1867  Congress,  fearing  that  the  I  resident  would 
dismiss  a  great  number  of  officials  who  sided  with  it  against 
him,  passed  an  Act  known  as  the  Tenure  of  Office  Act,  which 
made  the  consent  of  the  Senate  necessary  to  the  removal  of 
office-holders,  even  of  the  President’s  (so-called)  Cabinet  minis- 


CHAP.  V 


PRESIDENTIAL  POWERS  AND  DUTIES 


47 


ters,  permitting  him  only  to  suspend  them  from  office  during 
the  time  when  Congress  was  not  sitting.  The  constitutionaf- 
lty  ot  this  Act  has  been  much  doubted,  and  its  policy  is  now 
generally  condemned.  It  was  a  blow  struck  in  the  heat  of 
passion.  When  President  Grant  succeeded  in  1869,  the  Act 
was  greatly,  modified,  and  in  1887  it  was  repealed. 

How  dangerous  it  is  to  leave  all  offices  tenable  at  the  mere 
pleasure  of  a  partisan  executive  using  them  for  party  pur¬ 
poses,  has  been  shown  by  the  fruits  of  the  Spoils  System.  On 
the.  other  hand  a  President  ought  to  be  free  to  choose  his  chief 
advisers  and  ministers,  and  even  in  the  lower  ranks  of  the 
civil  service  it  is  hard  to  secure  efficiency  if  a  specific  cause, 

such  as  could  be  proved  to  a  jury,  must  be  assigned  for  dis- 
missal. 

The  Constitution  permits  Congress  to  vest  in  the  Courts  of 
Law. or  in  “the  heads  of  departments”  the  right  of  appointing 
to  inferior  offices.”  This  provision  has  been  used  to  remove 
many  posts  from  the  nomination  of  the  President,  and  by  the 
Civil  Service  Beform  Act  of  1883  competitive  examinations 
have  been  instituted  for  about  34,000.  A  considerable  num¬ 
ber,  however,  remain  in  the  free  gift  of  the  President ;  while 
e\en  as  regards  those  which  lie  with  his  ministers,  he  may  be 
invoked  if  disputes  arise  between  the  minister  and  politicians 
piessing  the  claims  of  their  respective  friends.  The  business 
of  nominating  is  in  ordinary  times  so  engrossing  as  to  leave 

the  chief  magistrate  of  the  nation  little  time  for  his  other 
functions. 

Artemus  Ward’s  description  of  Abraham  Lincoln  swept 
along  from  room  to  room  in  the  White  House  by  a  rising  tide 
of  office-seekers  is  hardly  an  exaggeration.  From  the  4th  of 
March,  when  Mr.  Garfield  came  into  power,  till  he  was  shot 
m  the  July  following,  he  was  engaged  almost  incessantly  in 
questions  of  patronage.1  Yet  the  President’s  individual  judg¬ 
ment  has  little  scope.  He  must  reckon  with  the  Senate ;  he 
must  requite  the  supporters  of  the  men  to  whom  he  owes  his 
election ;  he  must  so  distribute  places  all  over  the  country  as 


Xt  ls  re^ed  that  a  friend,  meeting  Mr.  Lincoln  one  day  during  the  war, 

fr  ,!!!>?’  l00k  anX!0US’  Mr*  Pvesident;  is  there  bad  news  from  the 

answered  the  President,  “it  isn’t  the  war:  it’s  that  post- 
mastership  at  Brownsville,  Ohio.”  1 


48 


the  national  government 


PART  1 


to  keep  the  local  wire-pullers  in  good  humour,  and  generally 
strengthen  the  party  by  “doing  something”  for  those  who 
have  worked  or  will  work  for  it.  Although  the  minor  posts 
are  practically  left  to  the  nomination  of  the  senators  or  con¬ 
gressmen  from  the  State  or  district,  conflicting  claims  give 
infinite  trouble,  and  the  more  lucrative  offices  are  numerous 
enough  to  make  the  task  of  selection  laborious  as  well  as 

thankless  and  disagreeable.  t  ,  , 

In  every  country  statesmen  find  the  dispensing  of  patronage 
the  most  disagreeable  part  of  their  work ;  and  the  more  con¬ 
scientious  they  are,  the  more  does  it  worry  them.  No  one  has 
more  to  gain  from  a  thorough  scheme  of  civil  service  reform 
than  the  President.  The  present  system  makes  a  wire-puller 
of  him.  It  throws  work  on  him  unworthy  of  a  fine  mtel  ec  , 
and  for  which  a  man  of  fine  intellect  may  be  ill  qualified.  On 
the  other  hand  the  President’s  patronage  is,  in  the  hands  of  a 
skilful  intriguer,  an  engine  of  far-spreading  potency,  by  it  e 
can  oblige  a  vast  number  of  persons,  can  bind  their  interests 
to  his  own,  can  fill  important  places  with  the  men  of  his  choice. 
Such  authority  as  he  has  over  the  party  in  Congress,  and  there¬ 
fore  over  the  course  of  legislation,  such  influence  as  lie  exerts  on 
his  party  in  the  several  States,  and  therefore  over  the  selection 
of  candidates  for  Congress,  is  due  to  his  patronage.  Unhappily, 
the  more  his  patronage  is  used  for  these  purposes,  the  more  it 
is  apt  to  be  diverted  from  the  aim  of  providing  the  country  with 

the  best  officials.  .  ,  XTrt 

In  quiet  times  the  power  of  the  President  is  not  great.  H 

is  hampered  at  every  turn  by  the  necessity  of  humouring  is 
party.  He  is  so  much  engrossed  by  the  trivial  and  mechanical 
parts  of  his  work  as  to  have  little  leisure  for  framing  large 
schemes  of  policy,  while  in  carrying  them  out  he  needs  the 
co-operation  of  Congress,  which  may  be  jealous,  or  indifferent, 
or  hostile.  He  has  less  influence  .on  legislation,— that  is  to 
say,  his  individual' volition  makes  less  difference  to  the  course 
legislation  takes,  than-the..  Speaker  of  the  House  of  Repre¬ 
sentatives.  In  troublous  times  it  is  otherwise,  for  immense 
responsibility  is  then  thrown  on  one  who  is  both  the  com¬ 
mander-in-chief  and  the  head  of  the  civil  executive.  Abraham 
Lincoln  wielded  more  authority  than  any  single  Englishman 
has  done  since  Oliver  Cromwell.  It  is  true  that  the  ordinary 


CHAP.  V 


PRESIDENTIAL  POWERS  AND  DUTIES 


49 

similarly  suspended baVe  t0  be 
the  President  a  sort  of  dictator  ^pension  makes 

Setting  aside  these  exceptional  moments  flip  , 

power  of  the  President  iioTO  r,  4.  11  rs’  tlie  Cblgnity  and 

tat  President’  who,  i" ‘rmhThVn^M."®"””'  J‘” 

a  rigid  or  supreme  frma+if  r  ’  ere’  ^00>  one  sees  how 
b  J;  supreme  constitution  serves  to  keen  thincr*  a*  ei 

were  But  for  its  iron  hand,  the  office  would  surelv  fn  "  7 

try  where  great  events  have  been  crowded  on  oup  7'  fp  C0Un; 

prir.,'  =r  :ts  ih,™  7  vrc  jrr 

~7Zi  S’Jg^s^  s.  r5* 

p 

European  kina'  He  hnq  nn-m-a™  r  4./  SS  than  a 

a  European  primf  mSsCbut the 3*momeat  ™ro™  ^an 
for  they  do  It  T“  “T* 

majority,  but  run  on  to  the  end  of  his  term  O^V^T^7 
compares  him  with  the  French  President  b  ,t  7h  °f  ”at"ra% 

power  arises  from  the  facUhat  it  f  l'mate  of  tbe  President’s 
naryand  under  extraordinary  circumstaLS/ThlsTfr  eTnlt 

and  yetjiMs  spLidlty  frequent  under^republhi™6^ 

TT  'JSgZXZ  “ 

the  senior  or  managing  clerk  in  n  1  !  ,  7  b  Spared  to 


50 


THE  NATIONAL  GOVERNMENT 


PART  i 


-Dllt  when  foreign  affairs  become  critical,  or  when  disorders 
within  the  Union  require  his  intervention,  —  when,  for  ms  ance, 

H  Ssts  with  him  to  put  down  an  insurrection  or  to  decide  which 
Of  two  rival  State  governments  he  will  recognize  and  suppoi 
tw  arms  everything  may  depend  on  his  judgment,  his  courag  , 
and  his  hearty  loyalty  to  the  principles  of  the  Constitution. 

It  used  to  be  thought  that  hereditary  monarchs  were  strong 
v,  op  thev  reianed  by  a  right  of  their  own,  not  derived  from 
Se  people  A  President  is  strong  for  the  exactly  opposite 
reason,  because  his  rights  come  straight  from  the ,  peop  e  We 
dmll  have  frequent  occasion  to  observe  that  nowhere  is  rne 
rule  of  public  opinion  so  complete  as  in  America,  or  so  direct 
at  is  to  say,  so  independent  of  the  ordinary  machinery  of 
that,  to  y.  President  is  deemed  to  represent  the 

people  no^ess  than  do  the  members  of  the  legislature  Public 
1  .1.  iw  ar,q  through  him  no  less  than  them,  and 

Althou“h  recent  Presidents  have  shown  no  disposition  to 
Altnoug  it  ig  Btill  the  fashion  m  America  to  be 

iealous  of  the  President’s  action,  and  to  warn  citizens  against 
whatTs  called  “  the  one  man  power.”  General  Ulysses  S.  Grant 
was  hardly  the  man  to  make  himself  a  tyrant,  yet  t  ie  ios  l  i  y 
to  a  third  term  of  office  which  moved  many  people  who  had 

not  merelv  on  reverence  for  the  example  set  by  Washingto  , 
but  also  on  the  fear  that  a  President  repeatedly  chosen  would 
become  dangerous  to  republican  institutions^  18 
alarm  seems  to  a  European  groundless.  I  do  not  deny  : 
really  great  man  might  exert  ampler  authority  from 
dential  chair  than  its  recent  occupants  have  do“  Phe  sam 
observation  applies  to  the  Popedom  and  even  to  the  Eng  s 
throne  The  President  has  a  position  of  immense  dign  y, 
unrivalled  platform  from  which  to  impress  his  ideas  upon  the 
neonle .  But  it  is  hard  to  imagine  a  President  overthrowing 

theexisting  Constitution.  He  has  no  standing UbUrtopping 
cannot  create  one.  Congress  can  checkmate  him  by  , stopp  g 
,,,Dlies  There  is  no  aristocracy  to  rally  round  hi  •  y 

iste  furnishes  an  independent  centre  of  resistance.  If  he 
were  to  attempt  a  coup  «  it  could  only  be  by  appeal- g  to 
the  people  against  Congress,  and  Congress  could  hardly,  con 


Oil AP.  V 


PRESIDENTIAL  POWERS  AND  DUTIES 


51 


s  dering  that  it  is  re-elected  every  two  years,  attempt  to  oppose 
the  people  One  must  suppose  a  condition  bordering  on  civil 
war,  and  the  President  putting  the  resources  of  the  executive 
at  the  service  of  one  of  the  intending  belligerents,  already 
strong  and  organized,  in  order  to  conceive  a  case  in  which 
he  will  be  formidable  to  freedom.  If  there  be  any  danger,  it 
would  seem  to  lie  in  another  direction.  The  larger  a  com¬ 
munity  becomes  the  less  does  it  seem  to  respect  an  assembly, 
tie  more  is  it  attracted  by  an  individual  man.  A  bold  Presi- 
dent  who  knew  himself  to  be  supported  by  a  majority  in  the 
country,  might  be  tempted  to  override  the  law,  and  deprive 
the  minority  of  the  protection  which  the  law  affords  it.  He 
might  be  a  tyrant,  not  against  the  masses,  but  with  the  masses. 
Hut  nothing  m  the  present  state  of  American  politics  gives 
weight  to  such  apprehensions. 


*n 


T  i 


CHAPTER  VI 

OBSERVATIONS  ON  THE  PRESIDENCY 

Although  the  President  has  been,  not  that  independent 
good  citizen  whom  the  framers  of  the  Constitution  contem¬ 
plated,  but,  at  least  during  the  last  sixty  years,  a  party  man, 
seldom  much  above  the  average  in  character  or  abilities,  the 
office  has  attained  the  main  objects  for  which  it  was  created. 
Such  mistakes  as  have  been  made  in  foreign  policy,  or  m  the 
conduct  of  the  administrative  departments,  have  been  rarely 
owing  to  the  constitution  of  the  office  or  to  the  errors  of  its 
holder.  This  is  more  than  one  who  should  review  the  his¬ 
tory  of  Europe  during  the  last  hundred  years  could  say  of  any 
European  monarchy.  Nevertheless,  the  faults  chargeable  on 
hereditary  kingship,  must  not  make  us  overlook  certain  de¬ 
fects  incidental  to  the  American  presidency,  perhaps  to  any 
plan  of  vesting  the  headship  of  the  State  in  a  person  elected 

for  a  limited  period.  > 

In  a  country  where  there  is  no  hereditary  throne  nor  hered¬ 
itary  aristocracy,  an  office  raised  far  above  all  other  offices 
offers  too  great  a  stimulus  to  ambition.  This  glittering  prize, 
always  dangling  before  the  eyes  of  prominent  statesmen,  has  a 
power  stronger  than  any  dignity  under  a  European  crown  to 
lure  them  (as  it  lured  Clay  and  Webster)  from  the  path  of 
straightforward  consistency.  One  who  aims  at  the  presi¬ 
dency  —  and  all  prominent  politicians  do  aim  at  it  —  has 
the  strongest  possible  motives  to  avoid  making  enemies. 
Now  a  great  statesman  ought  to  be  prepared  to  make  ene¬ 
mies.  It  is  one  thing  to  try  to  be  popular  — an  unpopular 
man  will  be  uninfluential  —  it  is  another  to  seek  popularity 
by  courting  every  section  of  your  party.  This  is  the  tempta¬ 
tion  of  presidential  aspirants. 

A  second  defect  is  that  the  presidential  election,  occurring 


52 


CHAP.  VI 


OBSERVATIONS  ON  THE  PRESIDENCY 


53 


once  in  four  years,  throws  the  country  for  several  months  into 
a  state  of  turmoil,  for  which  there  may  be  no  occasion.  Per¬ 
haps  there  are  no  serious  party  issues  to  be  decided,  perhaps 
the  best  thing  would  be  that  the  existing  administration  should 
pursue  the  even  tenor  of  its  way.  The  Constitution,  however 
requires  an  election  to  be  held,  so  the  whole  costly  and  compli¬ 
cated  machinery  of  agitation  is  put  in  motion ;  and  if  issues 
do  not  exist,  they  have  to  be  created.  Professional  politicians 
who  have  a  personal  interest  in  the  result,  because  it  involves 
the  gain  or  loss  of  office  to  themselves,  conduct  what  is  called 
a  “  campaign,”  and  the  country  is  forced  into  a  (possibly  facti¬ 
tious)  excitement,  from  midsummer,  when  each  party  selects 
the  candidate  whom  it  will  nominate,  to  the  first  week  of 
November,  when  the  contest  is  decided.  There  is  some  politi¬ 
cal  education  in  the  process,  but  it  is  bought  dearly,  not  to  add 
that  business,  and  especially  finance,  is  disturbed,  and  much 
money  spent  unproductively. 

.  A&am>  tliese  regularly  recurring  elections  produce  a  discon¬ 
tinuity  of  policy.  Even  when  the  new  President  belongs  to 
the  same  party  as  his  predecessor,  he  usually  nominates  a  new 
Cabinet,  having  to  reward  his  especial  supporters.  Many  of  the 
inferior  offices  are  changed ;  men  who  have  learned  their  work 
make  way  for  others  who  have  everything  to  learn.  If  the  new 
President  belongs  to  the  opposite  party,  the  change  of  officials 
is  far  more  sweeping,  and  involves  larger  changes  of  policy. 

Fourthly.  The  fact  that  he  is  re-eligible  once,  but  (practi¬ 
cally)  only  once,  operates  unfavourably  on  the  President.  He 
is  tempted  to  play  for  a  re-nomination  by  so  pandering  to  active 
sections  of  his  own  party,  or  so  using  his  patronage  to  concili¬ 
ate  influential  politicians,  as  to  make  them  put  him  forward 
at  the  next  election.  On  the  other  hand,  if  he  is  in  his  second 
teim  of  office,  he  has  no  longer  much  motive  to  regard  the 
interests  of  the  nation  at  large,  because  he  sees  that  his  own 
political  death  is  near.  It  may  be  answered  that  these  two 
evils  will  correct  one  another,  that  the  President  will  in  his 
first  term  be  anxious  to  win  the  respect  of  the  nation,  in  his 
second  he  will  have  no  motive  for  yielding  to  the  unworthy 
pressure  of  party  wirepullers ;  while  in  reply  to  the  suggestion 
that  if  he  were  held  ineligible  for  the  next  term,  but  eligible 
for  any  future  term,  both  sets  of  evils  might  be  avoided,  and 


54 


THE  NATIONAL  GOVERNMENT 


part  r 


both  sets  of  benefits  secured,  it  can  be  argued  that  such  a  pro¬ 
vision  would  make  that  breach  in  policy  which  may  now  hap¬ 
pen  only  once  in  eight  years,  necessarily  happen  once  m  four 
years.  It  would,  for  instance,  have  prevented  the  re-election 
of  Abraham  Lincoln  in  1864. 

The  founders  of  the  Southern  Confederacy  of  1861-5  were 
so  much  impressed  by  the  objections  to  the  present  system 
that  they  provided  that  their  President  should  hold  office  for 

six  years,  but  not  be  re-eligible.  . 

Pifthly.  An  outgoing  President  is  a  weak  President.  Lur¬ 
ing  the  four  months  of  his  stay  in  office  after  his  successor 
has  been  chosen,  he  declines,  except  in  cases  of  extreme  neces¬ 
sity,  to  take  any  new  departure,  to  embark  on  any  executive 
policy  which  cannot  be  completed  before  he  quits  office.  This 
is,  of  course,  even  more  decidedly  the  case  if  his  successor 

belongs  to  the  opposite  party. 

Lastly.  The  result  of  an  election  may  be  doubtful,  not 
from  equality  of  votes,  for  this  is  provided  against,  but  from  a 
dispute  as  to  the  validity  of  votes  given  in  or  reported  from 
the  States.  The  difficulty  which  arose  in  1876  will  not,  owing 
to  the  legislation  of  1887,  recur  in  quite  the  same  form.  But 
cases  may  arise  in  which  the  returns  from  a  State  of  its  elec¬ 
toral  votes  will,  because  notoriously  obtained  by  fraud  or  force, 
fail  to  be  recognized  as  valid  by  the  party  whose  candidate 
they  prejudice.  No  presidential  election  passes  without  charges 
of  this  kind,  and  these  charges  are  not  always  unfounded. 
Should  manifest  unfairness  coincide  with  popular  excitement 
over  a  really  important  issue,  the  self-control  of  the  people, 
which  in  1877,  when  no  such  issue  was  involved,  restrained 
the  party  passions  of  their  leaders,  may  prove  unequal  to  the 

strain  of  such  a  crisis.  >  , 

Further  observations  on  the  President,  as  a  part  of  tne 
machinery  of  government,  will  be  better  reserved  for  the  dis¬ 
cussion  of  the  relations  of  the  executive  and  legislative  depart¬ 
ments.  I  will  therefore  only  observe  here  that,  even  when  we 
allow  for  the  defects  last  enumerated,  the  presidential  office, 
if  not  one  of  the  best  features  of  the  American  Constitution, 
is  nowise  to  be  deemed  a  failure.  The  problem  of  construct¬ 
ing  a  stable  executive  in  a  democratic  country  is  indeed  so 
immensely  difficult  that  anything  short  of  a  failure  deserves 


CHAP.  VI 


OBSERVATIONS  ON  THE  PRESIDENCY 


55 


to  be  called  a  success.  Now  the  President  has,  during  more 
than  a  hundred  years,  carried  on  the  internal  administrative 
business  of  the  nation  with  due  efficiency.  Once  or  twice  as 
when  Jefferson  purchased  Louisiana,  and  Lincoln  emancipated 
the  slaves  in  the  revolted  States,  he  has  courageously  ventured 
on  stretches  of  authority,  held  at  the  time  to  be  doubtfully 
constitutional,  yet  necessary,  and  approved  by  the  judgment 
of  posteiity.  He  has  kept  the  machinery  working  quietly  and 
steadily  when  Congress  has  been  distracted  by  party  strife,  or 
paralyzed  by  the  dissensions  of  the  two  Houses,  or  enfeebled 
by  the  want  of  first-rate  leaders.  The  executive  has  been  able 
at  moments  of  peril,  to  rise  almost  to  a  dictatorship,  as  during 
the  War  of  Secession,  and,  when  peace  returned,  to  sink  back 
into  its  proper  constitutional  position.  It  has  shown  no  tern 

dency  so  to  dwarf  the  other  authorities  of  the  State  as  to  pave 
the  way  for  a  monarchy. 

Europeans  are  struck  by  the  faults  of  a  plan  which  plunges 
the  nation  into  a  whirlpool  of  excitement  once  every  four 
years,  and  commits  the  headship  of  the  State  to  a  party  leader 
chosen  for  a  short  period.  But  there  is  another  aspect  in 
which  the  presidential  election  may  be  regarded,  and  one 
whose  importance  is  better  appreciated  in  America  than  in 
Europe.  The  election  is  a  solemn  periodical  appeal  to  the 
nation  to  review  its  condition,  the  way  in  which  its  business 
has  been  carried  on,  the  conduct  of  the  two  great  parties.  It 
stiis  and  rouses  the  nation  as  nothing  else  does,  forces  every 
one  not  merely  to  think  about  public  affairs  but  to  decide  how 
he  judges  the  parties.  It  is  a  direct  expression  of  the  will 
of  twelve  millions  of  voters,  a  force  before  which  everything 
must  bow.  It  refreshes  the  sense  of  national  duty;  and  at 
great  crises  it  intensifies  national  patriotism. 

A  presidential  election  is  sometimes,  as  in  1800,  and  as  again 
most  notably  in  1860  and  1864,  a  turning-point  in  history.  In 
foim  it  is  nothing  more  than  the  choice  of  an  administrator  who 
cannot  influence  policy  otherwise  than  by  refusing  his  assent  to 
bills.  In  reality  it  is  the  deliverance  of  the  mind  of  the  people 
upon  all  such  questions  as  they  feel  able  to  decide.  A  curious 
parallel  may  in  this  respect  be  drawn  between  it  and  a  gen¬ 
eral  election  of  the  House  of  Commons  in  England.  A  general 
election  is  in  form  a  choice  of  representatives,  with  reference 


PART  I 


THE  NATIONAL  GOVERNMENT 


primarily  to  their  views  upon  various  current  questions.  In 
substance  it  is  often  a  national  vote,  committing  executive 
power  to  some  one  prominent  statesman.  Thus  the  elections 
of  1868,  1874,  1880,  were  practically  votes  of  the  nation  to 
place  Mr.  Gladstone  or  Mr.  Disraeli  at  the  head  of  the  gov¬ 
ernment.  So  conversely  in  America,  a  presidential  election, 
which  purports  to  be  merely  the  selection  of  a  man,  is  often 
in  reality  a  decision  upon  issues  of  policy,  a  condemnation  o 
the  course  taken  by  one  party,  a  mandate  to  the  other  to 
follow  some  different  course. 

Socially  regarded,  the  American  presidency  deserves  noth¬ 
ing  but  admiration.  The  President  is  simply  the  first  citizen 
of  a  free  nation,  depending  for  his  dignity  on  no  title,  no  offi¬ 
cial  dress,  no  insignia  of  state.  It  was  originally  proposed, 
doubtless  in  recollection  of  the  English  Commonwealth  of  the 
seventeenth  century,  to  give  him  the  style  of  “Highness,”  and 
“  Protector  of  the  Liberties  of  the  United  States.”  Others 
suo-o-ested  “  Excellency  1  and  Washington  is  said  to  have 
had" leanings  to  the  Dutch  style  of  “  High  Mightiness.”  The 
head  of  the  ruling  President  does  not  appear  on  coins,  nor  even 
on  postage  stamps.  His  residence  at  Washington,  called  offi¬ 
cially  “the  Executive  Mansion,”  and  familiarly  “the  White 
House,”  stands  in  a  shrubbery,  and  has  the  air  of  a  large 
suburban  villa  rather  than  of  a  palace.  The  rooms,  though 
spacious,  are  not  spacious  enough  for  the  crowds  that  attend 
the  public  receptions.  The  President’s  salary,  which  is  only 
$50,000  a  year,  does  not  permit  display,  nor  indeed  is  display 

expected  from  him. 

Washington  has  now  become  one  of  the  handsomest  capitals 
in  the  world,  and  cultivates  the  graces  and  pleasures  of  life 
with  eminent  success.  Besides  its  political  society  and  its 
diplomatic  society,  it  is  becoming  a  winter  resort  for  men  of 
wealth  and  leisure  from  all  over  the  continent.  It  is  a  place 
where  a  court  might  be  created,  did  any  one  wish  to  create  it. 
No  President  has  made  the  attempt ;  and  as  the  earlier  career 
of  the  chief  magistrate  and  his  wife  has  seldom  qualified  them 
to  lead  the  world  of  fashion,  none  is  likely  to  make  it. 

i  In  ridicule  of  this  the  more  democratic  members  of  Congress  proposed  to 
call  that  more  ornamental  than  useful  officer  the  Vice-President  “  His  super¬ 
fluous  Excellency.” 


CHAP.  VI 


OBSERVATIONS  ON  THE  PRESIDENCY 


57 


To  a  European  observer,  weary  of  the  slavish  obsequiousness 
and  lip-deep  adulation  with  which  the  members  of  reigning 
families  are  treated  on  the  eastern  side  of  the  Atlantic,  fawned 
on  in  public  and  carped  at  in  private,  the  social  relations  of  an 
American  President  to  his  people  are  eminently  refreshing. 

There  is  a  great  respect  for  the  office,  and  a  corresponding 
respect  for  the  man  as  the  holder  of  the  office,  if  he  has  done 
nothing  to  degrade  it.  There  is  no  servility,  no  fictitious  self- 
abasement  on  the  part  of  the  citizens,  but  a  simple  and  hearty 
deference  to  one  who  represents  the  majesty  of  the  nation,  the 
sort  of  respect  which  the  proudest  Roman  paid  to  the  consul¬ 
ship,  even  if  the  particular  consul  was,  like  Cicero,  a  “  new 
man.”  The  curiosity  of  the  visitors  who  throng  the  White 
House  on  reception  days  is  sometimes  too  familiar;  but  this 
fault  tends  to  disappear,  and  Presidents  have  now  more  reason 
to  complain  of  the  persecutions  they  endure  from  an  incessantly 
observant  journalism.  After  oscillating  between  the  ceremo¬ 
nious  state  of  George  Washington,  who  drove  to  open  Congress 
in  his  coach  and  six,  with  outriders  and  footmen  in  livery,  and 
the  ostentatious  plainness  of  Citizen  Jefferson,  who  would  ride 
up  alone  and  hitch  his  horse  to  the  post  at  the  gate,1  the  Presi¬ 
dent  has  settled  down  into  an  attitude  between  that  of  the 
mayor  of  a  great  English  town  on  a  public  occasion,  and  that 
of  a  European  cabinet  minister  on  a  political  tour.  He  is  fol¬ 
lowed  about  and  feted,  and  in  every  way  treated  as  the  first 
man  in  the  company ;  but  the  spirit  of  equality  which  rules  the 
country  has  sunk  too  deep  into  every  American  nature  for  him 
to  expect  to  be  addressed  with  bated  breath  and  whispering 
reverence.  He  has  no  military  guard,  no  chamberlains  or 
grooms-in-waiting;  his  everyday  life  is  simple  ;  his  wife  enjoys 
precedence  over  all  other  ladies,  but  is  visited  and  received 
just  like  other  ladies  ;  he  is  surrounded  by  no  such  pomp  and 
enforces  no  such  etiquette  as  that  which  belongs  to  the  gov¬ 
ernors  even  of  second-class  English  colonies,  not  to  speak  of 
the  viceroys  of  India  and  Ireland. 

1  Mr.  H.  Adams  ( First  Administration  of  Jefferson ,  vol.  i.  p.  197)  has,  how¬ 
ever,  shown  that  at  his  inauguration  Jefferson  walked. 


CHAPTER  YII 


WHY  GREAT  MEN  ARE  NOT  CHOSEN  PRESIDENTS 

Europeans  often  ask,  and  Americans  do  not  always  explain, 
how  it  happens  that  this  great  office,  the  greatest  in  the  world, 
unless  we  except  the  Papacy,  to  which  any  one  can  rise  by  his 
own  merits,  is  not  more  frequently  filled  by  great  and  strik¬ 
ing  men.  In  America,  which  is  beyond  all  other  countries  the 
country  of  a  “  career  open  to  talents,’7  a  country,  moreover,  in 
which  political  life  is  unusually  keen  and  political  ambition 
widely  diffused,  it  might  be  expected  that  the  highest  place 
would  always  be  won  by  a  man  of  brilliant  gifts.  But  since 
the  heroes  of  the  Revolution  died  out  with  #  J efferson  and 
Adams  and  Madison,  no  person  except  General  Grant  has 
reached  the  chair  whose  name  would  have  been  remembered 
had  he  not  been  President,  and  no  President  except  Abraham 
Lincoln  has  displayed  rare  or  striking  qualities  in  the  chair. 

Several  reasons  may  be  suggested  for  the  fact,  which  Ameri¬ 
cans  are  themselves  the  first  to  admit. 

One  is  that  the  proportion  of  first-rate  ability  drawn  into  / 
politics  is  smaller  in  America  than  in  most  European  coun¬ 
tries.  This  is  a  phenomenon  whose  causes  must  be  elucidated 
later:  in  the  meantime  it  is  enough  to  say  that  in  France 
and  Italy,  where  half-revolutionary  conditions  have  made 
public  life  exciting  and  accessible  ;  in  Germany,  where  an 
admirably  organized  civil  service  cultivates  and  develops  state¬ 
craft  with  unusual  success  ;  in  England,  where  many  persons 
of  wealth  and  leisure  seek  to  enter  the  political  arena,  while 
burning  questions  touch  the  interests  of  all  classes  and  make 
men  eager  observers  of  the  combatants,  the  total  quantity 
of  talent  devoted  to  parliamentary  or  administrative  work 
is  larger,  relatively  to  the  population,  than  in  America,  where 
much  of  the  best  ability,  both  for  thought  and  for  action,  for 
58 


CHAP.  VII 


WHY  GREAT  MEN  ARE  NOT  CHOSEN 


59 


planning  and  for  executing,  rushes  into  a  field  which  is  com¬ 
paratively  narrow  in  Europe,  the  business  of  developing  the 
material  resources  of  the  country.  /  ^ 

Another  is  that  the  methods  and  habits  of  Congress,  and 
indeed  of  political  life  generally,  give  fewer  opportunities  for  ^ 
personal  distinction,  fewer  modes  in  which  a  man  may  com¬ 
mend  himself  to  his  countrymen  by  eminent  capacity  in 
thought,  in  speech,  or  in  administration,  than  is  the  case  in 
the  free  countries  of  Europe. 

A  third  reason  is  that  eminent  men  make  more  enemies, 
and  give  those  enemies  more  assailable  points,  than  obscure  2 
men  do.  They  are  therefore  in  so  far  less  desirable  candi¬ 
dates.  It  is  true  that  the  eminent  man  has  also  made  more 
friends,  that  his  name  is  more  widely  known,  and  may  be 
greeted  with  louder  cheers.  Other  things  being  equal,  the 
famous  man  is  preferable.  But  other  things  never  are  equal. 

The  famous  man  has  probably  attacked  some  leaders  in  his 
own  party,  has  supplanted  others,  has  expressed  his  dislike 
to  the  crotchet  of  some  active  section,  has  perhaps  committed 
errors  which  are  capable  of  being  magnified  into  offences. 

No  man  stands  long  before  the  public  and  bears  a  part  in 
great  affairs  without  giving  openings  to  censorious  criticism. 
Fiercer  far  than  the  light  which  beats  upon  a  throne  is  the 
light  which  beats  upon  a  presidential  candidate,  searching 
out  all  the  recesses  of  his  past  life.  Hence,  when  the  choice 
lies  between  a  brilliant  man  and  a  safe  man,  the  safe  man  is 
preferred.  Party  feeling,  strong  enough  to  carry  in  on  its 
back  a  man  without  conspicuous  positive  merits,  is  not  always 
strong  enough  to  procure  forgiveness  for  a  man  with  positive 
faults 

A  European  finds  that  this  phenomenon  needs  in  its  turn 
to  be  explained,  for  in  the  free  countries  of  Europe  brilliancy, 
be  it  eloquence  in  speech,  or  some  striking  achievement  in 
war  or  administration,  or  the  power  through  whatever  means 
of  somehow  impressing  the  popular  imagination,  is  what 
makes  a  leader  triumphant.  Why  should  it  be  otherwise  in 
America  ?  Because  in  America  party  loyalty  and  party 
organization  have  been  hitherto  so  perfect  that  any  one  put 
forward  by  the  party  will  get  the  full  party  vote  if  his  char¬ 
acter  is  good  and  his  “  record,”  as  they  call  it,  unstained. 


60 


THE  NATIONAL  GOVERNMENT 


PART  I 


The  safe  candidate  may  not  draw  in  quite  so  many  votes 
from  the  moderate  men  of  the  other  side  as  the  brilliant  one 
would,  but  he  will  not  lose  nearly  so  many  from  his  own 
ranks.  Even  those  who  admit  his  mediocrity  will  vote 
straight  when  the  moment  for  voting  comes.  Besides,  the 
ordinary  American  voter  does  not  object  to  mediocrity.  He 
has  a  lower  conception  of  the  qualities  requisite  to  make  a 
statesman  than  those  who  direct  public  opinion  in  Europe 
have.  He  likes  his  candidate  to  be  sensible,  vigorous,  and, 
above  all,  what  he  calls  “magnetic,”  and  does  not  value, 
because  he  sees  no  need  for,  originality  or  profundity,  a  fine 
culture  or  a  wide  knowledge.  Candidates  are  selected  to  be 
run  for  nomination  by  knots  of  persons  who,  however  expert 
as  party  tacticians,  are  usually  commonplace  men ;  and  the 
choice  between  those  selected  for  nomination  is  made  by  a 
very  large  body,  an  assembly  of  over  eight  hundred  delegates 
from  the  local  party  organizations  over  the  country,  who  are 
certainly  no  better  than  ordinary  citizens.  How  this  process 
works  will  be  seen  more  fully  when  I  come  to  speak  of  those 
Nominating  Conventions  which  are  so  notable  a  feature  in 
American  politics. 

It  must  also  be  remembered  that  the  merits  of  a  President 
are  one  thing  and  those  of  a  candidate  another  thing.  An 
eminent  American  is  reported  to  have  said  to  friends  who 
wished  to  put  him  forward,  “  Gentlemen,  let  there  be  no  mis¬ 
take.  I  should  make  a  good  President,  but  a  very  bad  candi¬ 
date.”  Now  to  a  party  it  is  more  important  that  its  nominee 
should  be  a  good  candidate  than  that  he  should  turn  out  a 
good  President.  A  nearer  danger  is  a  greater  danger.  As 
Saladin  says  in  The  Talisman,  “A  wild  cat  in  a  chamber  is 
more  dangerous  than  a  lion  in  a  distant  desert.”  It  will  be 
a  misfortune  to  the  party,  as  well  as  to  the  country,  if  the 
candidate  elected  should  prove  a  bad  President.  But  it  is  a 
greater  misfortune  to  the  party  that  it  should  be  beaten  in  the 
impending  election,  for  the  evil  of  losing  national  patronage 
will  have  come  four  years  sooner.  “  B  ”  (so  reason  the  lead¬ 
ers),  “who  is  one  of  our  possible  candidates,  may  be  an  abler 
man  than  A,  who  is  the  other.  But  we  have  a  better  chance 
of  winning  with  A  than  with  B,  while  X,  the  candidate  of  our 
opponents,  is  anyhow  no  better  than  A.  We  must  therefore 


CHAP.  VII 


WHY  GREAT  MEN  ARE  NOT  CHOSEN 


61 


run  A.”  This  reasoning  is  all  the  more  forcible  because  the 
previous  career  of  the  possible  candidates  has  generally  made 
it  easier  to  say  who  will  succeed  as  a  candidate  than  who  will 
succeed  as  a  President;  and  because  the  wirepullers  with 
whom  the  choice  rests  are  better  judges  of  the  former  ques¬ 
tion  than  of  the  latter. 

After  all,  too,  a  President  need  not  be  a  man  of  brilliant 
intellectual  gifts.  His  main  duties  are  to  be  prompt  and  firm 
in  securing  the  due  execution  of  the  laws  and  maintaining  the 
public  peace,  careful  and  upright  in  the  choice  of  the  executive 
officials  of  the  country.  Eloquence,  whose  value  is  apt  to 
be  overrated  in  all  free  countries,  imagination,  profundity  of 
thought  or.  extent  of  knowledge,  are  all  in  so  far  a  gain  to  him 
that  they  make  him  “a  bigger  man,”  and  help  him  to  gain 
over  the  nation  an  influence  which,  if  he  be  a  true  patriot,  he 
may  use  for  its  good.  But  th.ey  are  not  necessary  for  the  due 
discharge  in  ordinary  times  of  the  duties  of  his  post.  Four- 
fifths  of  his  work  is  the  same  in  kind  as  that  which  devolves 
on  the  chairman  of  a  commercial  company  or  the  manager  of 
a  railway,  the  work  of  choosing  good  subordinates,  seeing  that 
they  attend  to  their  business,  and  taking  a  sound  practical 
view  of  such  administrative  questions  as  require  his  decision. 
Firmness,  common  sense,  and  most  of  all,  honesty,  an  honesty 
above  all  suspicion  of  personal  interest,  are  the  qualities  which 
the  country  chiefly  needs  in  its  first  magistrate. 

So  far  we  have  been  considering  personal  merits.  But  in 
the  selection  of  a  candidate  many  considerations  have  to  be 
regarded  besides  the  personal  merits,  whether  of  a  candidate, 
or  of  a  possible  President.  The  chief  of  these  considerations 
is  the  amount  of  support  which  can  be  secured  from  different 
States  or  from  different  “ sections”  of  the  Union,  a  term  by 
which  the  Americans  denote  groups  of  States  with  a  broad 
community  of  interest.  State  feeling  and  sectional  feeling 
are  powerful  factors  in  a  presidential  election.  The  North¬ 
west,  including  the  States  from  Ohio  to  Dakota,  is  now  the 
most  populous  section  of  the  Union,  and  therefore  counts 
for  most  in  an  election.  It  naturally  conceives  that  its  inter¬ 
ests  will  be  best  protected  by  one  who  knows  them  from  birth 
and  residence.  Hence  prima  facie  a  North-western  man  makes 
the  best  candidate.  A  large  State  casts  a  heavier  vote  in  the 


62 


THE  NATIONAL  GOVERNMENT 


PART  I 


election ;  and  every  State  is  of  course  more  likely  to  be  carried 
by  one  of  its  own  children  than  by  a  stranger,  because  his 
fellow-citizens,  while  they  feel  honoured  by  the  choice,  gain 
also  a  substantial  advantage,  having  a  better  prospect  of  such 
favours  as  the  administration  can  bestow.  Hence,  ccsteris  pari¬ 
bus,  a  man  from  a  large  State  is  preferable  as  a  candidate. 
The  problem  is  further  complicated  by  the  fact  that  some 
States  are  already  safe  for  one  or  other  party,  while  others  are 
doubtful.  The  North-western  and  New  England  States  are 
most  of  them  likely  to  go  Republican :  the  Southern  States 
are  (at  present)  all  of  them  certain  to  go  Democratic.  Catena 
paribus ,  a  candidate  from  a  doubtful  State,  such  as  New  York 
and  Indiana  have  usually  been,  is  to  be  preferred.  • 

Although  several  Presidents  have  survived  their  departure 
from  office  by  many  years,  only  one,  John  Quincy  Adams, 
played  a  part  in  politics  after  quitting  the  White  House.1  It 
may  be  that  the  ex-President  has  not  been  a  great  leader  be¬ 
fore  his  accession  to  office ;  it  may  be  that  he  does  not  care 
to  exert  himself  after  he  has  held  and  dropped  the  great 
prize,  and  found  (one  may  safely  add)  how  little  of  a  prize 
it  is.  Something,  however,  must  also  be  ascribed  to  other 
features  of  the  political  system  of  the  country.  It  is  often 
hard  to  find  a  vacancy  in  the  representation  of  a  given  State 
through  which  to  re-enter  Congress;  it  is  disagreeable  to  re¬ 
cur  to  the  arts  by  which  seats  are  secured.  Past  greatness  is 
rather  an  encumbrance  than  a  help  to  resuming  a  political 
career.  Exalted  power,  on  which  the  unsleeping  eye  of  hos¬ 
tile  critics  was  fixed,  has  probably  disclosed  all  a  President’s 
weaknesses,  and  has  either  forced  him  to  make  enemies  by  dis¬ 
obliging  adherents,  or  exposed  him  to  censure  for  subservience 
to  party  interests.  He  is  regarded  as  having  had  his  day ;  he 
belongs  already  to  the  past,  and  unless,  like  Grant,  he  is  en¬ 
deared  to  the  people  by  the  memory  of  some  splendid  service, 
or  is  available  to  his  party  as  a  possible  candidate  for  a  further 
term  of  office,  he  soon  sinks  into  the  crowd  or  avoids  neglect 
by  retirement. 

i  J.  Q.  Adams  was  elected  to  the  House  of  Representatives  within  three 
years  from  his  presidency,  and  there  became  for  seventeen  years  the  fearless 
and  formidable  advocate  of  what  may  be  called  the  national  theory  of  the 
Constitution  against  the  slaveholders. 


ciiap.  vii  WHY  GREAT  MEN  ARE  NOT  CHOSEN 


63 


We  may  now  answer  the  question  from  which  we  started. 
Great  men  are  not  chosen  Presidents,  first  because  great  men 
are  rare  in  politics;  secondly,  because  the  method  of  choice 
does  not  bring  them  to  the  top ;  thirdly,  because  they  are  not, 
in  quiet  times,  absolutely  needed.  Let  us  close  by  observing 
that  the  Presidents,  regarded  historically,  fall  into  three  peri¬ 
ods,  the  second  inferior  to  the  first,  the  third  rather  better  than 
the  second. 

Down  till  the  election  of  Andrew  Jackson  in  1828,  all  the 
Presidents  had  been  statesmen  in  the  European  sense  of  the 
word,  men  of  education,  of  administrative  experience,  of  a  cer¬ 
tain  largeness  of  view  and  dignity  of  character.  All  except 
the  first  two  had  served  in  the  great  office  of  Secretary  of  State  ; 
all  were  well  known  to  the  nation  from  the  part  they  had  played. 
In  the  second  period,  from  Jackson  till  the  outbreak  of  the 
Civil  War  in  1861,  the  Presidents  were  either  mere  politicians, 
such  as  Van  Buren,  Polk,  or  Buchanan,  or  else  successful  sol¬ 
diers,1  such  as  Harrison  or  Taylor,  whom  their  party  found 
useful  as  figure-heads.  They  were  intellectual  pigmies  be¬ 
side  the  real  leaders  of  that  generation  —  Clay,  Calhoun,  and 
Webster.  A  new  series  begins  with  Lincoln  in  1861.  He  and 
General  Grant,  his  successor,  who  cover  sixteen  years  between 
them,  belong  to  the  history  of  the  world.  The  other  less  dis¬ 
tinguished  Presidents  of  this  period  contrast  favourably  with 
the  Polks  and  Pierces  of  the  days  before  the  war,  but  they  are 
not,  like  the  early  Presidents,  the  first  men  of  the  country. 
If  we  compare  the  nineteen  Presidents  who  have  been  elected 
to  office  since  1789  with  the  nineteen  English  prime  ministers 
of  the  same  hundred  years,  there  are  but  six  of  the  latter,  and 
at  least  eight  of  the  former  whom  history  calls  personally 
insignificant,  while  only  Washington,  Jefferson,  Lincoln,  and 
Grant  can  claim  to  belong  to  a  front  rank  represented  in  the 
English  list  by  seven  or  possibly  eight  names.  It  would  seem 
that  the  natural  selection  of  the  English  parliamentary  system, 
even  as  modified  by  the  aristocratic  habits  of  that  country,  has 
more  tendency  to  bring  the  highest  gifts  to  the  highest  place 
than  the  more  artificial  selection  of  America. 

1  Jackson  himself  was  something  of  both  politician  and  soldier,  a  strong 
character,  but  a  narrow  and  uncultivated  intellect. 


CHAPTER  VIII 


THE  CABINET 

* 

There  is  in  the  government  of  the  United  States  no  such 
thing  as  a  Cabinet  in  the  English  sense  of  the  term.  But  I 
use  the  term,  not  only  because  it  is  current  in  America  to  de¬ 
scribe  the  chief  ministers  of  the  President,  but  also  because  it 
calls  attention  to  the  remarkable  difference  which  exists  be¬ 
tween  the  great  officers  of  State  in  America  and  the  similar 
officers  in  the  free  countries  of  Europe. 

Almost  the  only  reference  in  the  Constitution  to  the  minis¬ 
ters  of  the  President  is  that  contained  in  the  power  given  him 
to  “  require  the  opinion  in  writing  of  the  principal  officer  in 
each  of  the  executive  departments  upon  any  subject  relating  to 
the  duties  of  their  respective  offices.”  All  these  departments 
have  been  created  by  Acts  of  Congress.  Washington  began 
in  1789  with  four  only,  at  the  head  of  whom  were  the  fol¬ 
lowing  four  officials :  — 

Secretary  of  State. 

Secretary  of  the  Treasury. 

Secretary  of  War. 

Attorney-General. 

In  1798  there  was  added  a  Secretary  of  the  Navy,  in  1829  a 
Postmaster-General,1  in  1849  a  Secretary  of  the  Interior,  and 
in  1888  a  Secretary  of  Agriculture. 

These  eight  now  make  up  what  is  called  the  Cabinet.2  Each 

1  The  Postmaster-General  had  been  previously  deemed  a  subordinate  in  the 
Treasury  department,  although  the  office  was  organized  by  Act  of  Congress 
in  1794;  he  has  been  held  to  belong  to  the  Cabinet  since  Jackson,  in  1829,  in¬ 
vited  him  to  Cabinet  meetings. 

2  There  is  also  an  Inter-state  Commerce  Commission,  with  large  powers 
over  railways,  created  in  February  1887  by  Act  of  Congress ;  a  Labour 
Bureau  erected  into  a  department  in  1888 ;  a  Fish  Commission  created  in 
1870;  and  a  Civil  Service  Commission  created  in  1883. 

64 


Chap,  viii 


THE  CABINET 


65 


receives  a  salary  of  $8000.  All  are  appointed  by  the  Presi¬ 
dent,  subject  to  the  consent  of  the  Senate  (which  is  practically 
never  refused),  and  may  be  removed  by  the  President  alone. 
Nothing  marks  them  off  from  any  other  officials  who  might  be 
placed  in  charge  of  a  department,  except  that  they  are  sum¬ 
moned  by  the  President  to  his  private  council. 

None  of  them  can  vote  in  Congress,  Art.  xi.  §  6  of  the  Con¬ 
stitution  providing  that  “  no  person  holding  any  office  under 
the  United  States  shall  be  a  member  of  either  House  during' 
his  continuance  in  office.” 

It  deserves  to  be  noticed,  however,  that  the  Constitution  con¬ 
tains  nothing  to  prevent  ministers  from  being  present  in  either 
House  of  Congress  and  addressing  it,1  as  the  ministers  of  the 
King  of  Italy  or  of  the  French  President  may  do  in  either 
chamber  of  Italy  or  France.  It  is  absolutely  silent  on  the  sub¬ 
ject  of  communications  between  officials  (other  than  the  Presi¬ 
dent)  and  the  representatives  of  the  people. 

The  President  has  the  amplest  range  of  choice  for  his  min¬ 
isters.  He  usually  forms  an  entirely  new  Cabinet  when  he 
enters  office,  even  if  he  belongs  to  the  same  party  as  his  prede¬ 
cessor.  He  may  take,  he  sometimes  does  take,  men  who  not 
only  have  never  sat  in  Congress,  but  have  not  figured  in  poli¬ 
tics  at  all,  who  may  never  have  sat  in  a  State  legislature  nor 
held  the  humblest  office.2  Generally  of  course  the  persons 
chosen  have  already  made  for  themselves  a  position  of  at  least 
local  importance.  Often  they  are  those  to  whom  the  new 
President  owes  his  election,  or  to  whose  influence  with  the 
party  he  looks  for  support  in  his  policy.  Sometimes  they 
have  been  his  most  prominent  competitors  for  the  party  nomi¬ 
nations.  Thus  Mr.  Lincoln  in  1861  appointed  Mr.  Seward  and 
Mr.  Chase  to  be  his  secretary  of  state  and  secretary  of  the 
treasury  respectively,  they  being  the  two  men  who  had  come 

1  In  February  1881  a  committee  of  eight  senators  unanimously  reported  in 
favour  of  a  plan  to  give  seats  (of  course  without  the  right  to  vote)  in  both 
Houses  of  Congress  to  Cabinet  ministers,  they  to  attend  on  alternate  days  in 
the  Senate  and  in  the  House.  The  committee  recommended  that  the  necessary 
modification  in  the  rules  should  be  made,  adding  that  they  had  no  doubt  of 
the  constitutionality  of  the  proposal.  Nothing  has  so  far  been  done  to  carry 
out  this  report. 

2  Only  two  members  of  Mr.  Harrison’s  Cabinet,  formed  in  1889,  had  ever  sat 
in  Congress, 


66 


THE  NATIONAL  GOVERNMENT 


PART  i 


next  after  him  in  the  selection  by  the  Republican  party  of  a 
presidential  candidate. 

The  most  dignified  place  in  the  Cabinet  is  that  of  the  Secre¬ 
tary  of  State.  It  is  the  great  prize  often  bestowed  on  the  man 
to  whom  the  President  is  chiefly  indebted  for  his  election,  or 
at  any  rate  on  one  of  the  leaders  of  the  party.  In  early  days, 
it  was  regarded  as  the  stepping-stone  to  the  presidency.  Jef¬ 
ferson,  Madison,  Monroe,  and  J.  Q.  Adams  had  all  served  as 
secretaries  to  preceding  Presidents.  The  conduct  of  foreign 
affairs  is  the  chief  duty  of  the  State  department :  its  head  has 
therefore  a  larger  stage  to  play  on  than  any  other  minister, 
and  more  chances  of  fame.  His  personal  importance  is  all  the 
greater  because  the  President  is  usually  so  much  absorbed  by 
questions  of  patronage  as  to  be  forced  to  leave  the  secretary  to 
his  own  devices.  Hence  the  foreign  policy  of  the  administra¬ 
tion  is  practically  that  of  the  secretary,  except  so  far  as  the 
latter  is  controlled  by  the  Senate.  The  State  department  has 
also  the  charge  of  the  great  seal  of  the  United  States,  keeps 
the  archives,  publishes  the  statutes,  and  of  course  instructs 
and  controls  the  diplomatic  and  consular  services. 

The  Secretary  of  the  Treasury  is  minister  of  finance.  His 
function  was  of  the  utmost  importance  at  the  beginning  of  the 
government,  when  a  national  system  of  finance  had  to  be  built 
up  and  the  Pederal  government  rescued  from  its  grave  embar¬ 
rassments.  Hamilton,  who  then  held  the  office,  effected  both ; 
and  the  work  of  Gallatin,  who  served  under  Jefferson,  was 
scarcely  less  important.  During  the  War  of  Secession,  it  be¬ 
came  again  powerful,  owing  to  the  enormous  loans  contracted 
and  the  quantities  of  paper  money  issued,  and  it  remains  so 
now,  because  it  has  the  management  (so  far  as  Congress  per 
mits)  of  the  currency  and  the  national  debt.  The  secretary 
has,  however,  by  no  means  the  same  range  of  action  as  a  finance 
minister  in  European  countries,  for  as  he  is  excluded  from 
Congress,  although  he  regularly  reports  to  it,  he  has  nothing 
directly  to  do  with  the  imposition  of  taxes,  and  very  itt  e 
with  the  appropriation  of  revenue  to  the  various  burdens  o 

the  State. 

The  Secretary  of  the  Interior  is  far  from  being  the  omni¬ 
present  power  which  a  minister  of  the  interior  is  in  Prance  or 
Italy,  or  even  a  home  secretary  in  England,  since  nearly  all 


CHAP.  VIII 


THE  CABINET 


67 


the  functions  which  these  officials  discharge  belong  in  America 
to  the  State  governments  or  to  the  organs  of  local  government 
He  is  chiefly  occupied  in  the  management  of  the  public  lands' 
sti  of  immense  value,  despite  the  lavish  grants  made  to  rail- 
way  companies,  and  with  the  conduct  of  Indian  affairs  a 
troublesome  and  unsatisfactory  department,  which  has  always 
been  a  reproach  to  the  United  States,  and  will  apparently  con¬ 
tinue  so  till  the  Indians  themselves  disappear  or  become  civil 
lzed.  Patents  and  pensions  also  belong  to  his  province,  as  do 
the  national  census  and  the  geological  survey. 

The  duties  of  the  Secretaries  of  War,  of  the  Navy,  of  Agri¬ 
culture,  and  of  the  Postmaster-General  may  be  gathered  from 
their  names.  The  Attorney-General  is  not  only  public  prose 
cutor  and  standing  counsel  for  the  United  States,  but  also  'to 
some  extent  what  is  called  on  the  European  continent  a  minis¬ 
ter  of  justice.  He  has  a  general  oversight  — it  can  hardly  be 
described  as  a  control -of  the  Federal  judicial  departments 
and  especially  of  the  prosecuting  officers  called  district  attor¬ 
neys,  and  executive  court  officers,  called  United  States  mar- 
s  als.  He  is  the  legal  adviser  of  the  President  in  those  deli¬ 
cate  questions,  necessarily  frequent  under  the  Constitution  of 
the  United  States,  which  arise  as  to  the  limits  of  the  execu¬ 
tive  power  and  the  relations  of  Federal  to  State  authority  and 
generally  in  all  legal  matters.  His  opinions  are  frequently 
published  officially,  as  a  justification  of  the  President’s  conduct 
and  an  indication  of  the  view  which  the  executive  takes  of  its 
legal  position  and  duties  in  a  pending  matter.  The  attorney- 
general  is  always  a  lawyer  of  eminence,  but  not  necessarily  in 
the  front  rank  of  the  profession,  for  political  considerations 
have  much  to  do  with  determining  the  President’s  choice. 

The  respective  positions  of  the  President  and  his  ministers 
are,  as  has  already  been  explained,  the  reverse  of  those  which 
exist  in  the  constitutional  monarchies  of  Europe.  There  the 
sovereign  is  irresponsible  and  the  minister  responsible  for  the 
acts  which  he  does  in  the  sovereign’s  name.  In  America 
the  President  is  responsible  because  the  minister  is  nothing 
more  than  his  servant,  bound  to  obey  him,  and  independent 
of  Congress.  The  minister’s  acts  are  therefore  legally  the  acts 
of  the  President.  Nevertheless  the  minister  is  also  respon¬ 
sible  and  liable  to  impeachment  for  offences  committed  in  the 


68 


THE  NATIONAL  GOVERNMENT 


PART  i 


discharge  of  his  duties.  The  question  whether  he  is,  as  in 
England,  impeachable  for  giving  bad  advice  to  the  head  of 
the  State  has  never  arisen,  but  upon  the  general  theory  o  re 
Constitution  it  would  rather  seem  that  he  is  not,  unless  of 
course  his  bad  counsel  should  amount  to  a  conspiracy  with  the 

President  to  commit  an  impeachable  offence. 

So  much  for  the  ministers  taken  separately.  It  remains  o 
consider  how  an  American  administration  works  as  a  whole, 
this  being  in  Europe  the  most  peculiar  and  significant  feature 
of  the  parliamentary  or  so-called  “  cabinet  ”  system. 

In  America  the  administration  does  not  work  as  a  whole. 

It  is  not  a  whole.  It  is  a  group  of  persons,  each  individually 
dependent  on  and  answerable  to  the  President,  but  with  no 
-joint  policy,  no  collective  responsibility. 

When  the  Constitution  was  established,  and  George  Was  - 
ino-ton  chosen  first  President  under  it,  it  was  intended  that  the 
President  should  be  outside  and  above  party,  and  the  method 
of  choosing  him  by  electors  was  contrived  with  this  very  view. 
Washington  belonged  to  no  party,  nor  indeed,  though  diverg¬ 
ing  tendencies  were  already  manifest,  had  parties  yet  begun  to 
exist.  There  was  therefore  no  reason  why  he  should  not  select 
his  ministers  from  all  sections  of  opinion.  As  he  was  respon-  ^ 
sible  to  the  nation  and  not  to  a  majority  m  Congress,  he  was 
not  bound  to  choose  persons  who  agreed  with  the  majority  in 
Congress.  As  he,  and  not  the  ministry,  was  responsible  for 
executive  acts  done,  he  had  to  consider,  not  the  opinions  or 
affiliations  of  his  servants,  but  their  capacity  and  mtegri  y 
only.  Washington  chose  as  secretary  of  state  Thomas  Jeffer¬ 
son,  already  famous  as  the  chief  draftsman  of  the  Declaration 
of  Independence,  and  as  attorney-general  another  Virginian, 
Edmund  Randolph,  both  men  of  extreme  democratic  leanings, 
disposed  to  restrict  the  action  of  the  Eederal  government 
within  narrow  limits.  Eor  secretary  of  the  treasury  he  se¬ 
lected  Alexander  Hamilton  of  Hew  York,  and  for  secretary 
of  war  Henry  Knox  of  Massachusetts.  Hamilton  was  by  far 
the  ablest  man  among  those  who  soon  came  to  form  the  I  eder- 
alist  party,  the  party  which  called  for  a  strong  executive,  an 
desired  to  subordinate  the  States  to  the  central  authority.  He 
soon  became  recognized  as  its  leader.  Knox  was  of  the  same 
way  of  thinking.  Dissensions  presently  arose  between  defter- 


CHAP.  VIII 


THE  CABINET 


69 


son  and  Hamilton,  ending  in  open  hostility,  but  Washington 
retained  them  both  as  ministers  till  Jefferson  retired  in  1794 
and  Hamilton  in  1795. 

The  second  President,  John  Adams,  kept  on  the  ministers 
of  his  piedecessors,  being  in  accord  with  their  opinions,  for 
they  and  he  belonged  to  the  now  full-grown  Federalist  party. 
But  before  he  quitted  office  he  had  quarrelled  with  most  of 
them,  having  taken  important  steps  without  their  knowledge 
and  against  their  wishes.  Jefferson,  the  third  President,  was 
a  thoroughgoing  party  leader,  who  naturally  chose  his  'min¬ 
isters  from  his  own  political  adherents.  As  all  subsequent 
Presidents  have  been  seated  by  one  or  other  party,  all  have 
felt  bound  to  appoint  a  party  Gabinet.  Their  party  expects 
it ;  and  they  prefer  to  be  surrounded  and  advised  by  their  own 
friends. 

The  President  is  personally  responsible  for  his  acts,  not 
indeed  to  Congress,  but  to  the  people,  by  whom  he  is  chosen. 
No  means  exist  of  enforcing  this’  responsibility,  except  by  im¬ 
peachment,  but  as  his  power  lasts  for  four  years  only,  and  is 
much  restricted,  this  is  no  serious  evil.  He  cannot  avoid  respon¬ 
sibility  by  alleging  the  advice  of  his  ministers,  for  he  need  not 
follow  it,  and  they  are  bound  to  obey  him  or  retire.  The  minis¬ 
ters  do  not  sit  in  Congress.  They  are  not  accountable  to  it,  but 
to  the  President,  their  master.  It  may  request  their  attendance 
before  a  committee,  as  it  may  require  the  attendance  of  any 
other  witness,  but  they  have  no  opportunity  of  expounding 
and  justifying  to  Congress  as  a  whole  their  own,  or  rather 
their  master’s,  policy.  Hence  an  adverse  vote  of  Congress 
does  not  affect  their  or  his  position.  If  they  propose  to  take 
a  step  which  requires  money,  and  Congress  refuses  the  requi¬ 
site  appropriation,  the  step  cannot  be  taken.  But  a  dozen 
votes  of  censure  will  neither  compel  them  to  resign  nor  oblige 
the  President  to  pause  in  any  line  of  conduct  which  is  within 
his  constitutional  rights. 

This,  however  strange  it  may  seem  to  a  European,  is  a 
necessary  consequence  of  the  fact  that  the  President,  and  by 
consequence  his  Cabinet,  do  not  derive  their  authority  from 
Congress.  Suppose  (as  befel  in  1878—9)  a  Bepublican  Presi¬ 
dent,  with  a  Democratic  majority  in  both  Houses  of  Con¬ 
gress.  The  President,  unless  of  course  he  is  convinced  that 


70 


THE  NATIONAL  GOVERNMENT 


PART  i 


the  nation  has  changed  its  mind  since  it  elected  him,  is  moi- 
ally  bound  to  follow  out  the  policy  which  he  professed  as  a 
candidate,  and  which  the  majority  of  the  nation  must  be  held 
in  electing  him  to  have  approved.  That  policy  is,  however, 
opposed  to  the  views  of  the  present  majority  of  Congress. 
They  are  right  to  check  him  as  far  as  they  can.  He  is  right 
to  follow  out  his  own  views  and  principles  in  spite  of  them  so 
far  as  the  Constitution  and  the  funds  at  his  disposal  permit. 

A  deadlock  may  follow.  But  deadlocks  may  happen  under 
any  system,  except  that  of  an  omnipotent  sovereign,  be  he  a 
man  or  an  assembly,  the  risk  of  deadlocks  being  indeed  the 
price  which  a  nation  pays  for  the  safeguard  of  constitutional 

checks. 

In  this  state  of  things  one  cannot  properly  talk  of  the  Cab¬ 
inet  apart  from  the  President.  An  American  administration 
resembles  not  so  much  the  Cabinets  of  England  and  France  as 
the  group  of  ministers  who  surround  the  Czar  or  the  Sultan, 
or  who  executed  the  bidding  of  a  Roman  emperor  like  Con¬ 
stantine  or  Justinian.  Such  ministers  are  severally  respon¬ 
sible  to  their  master,  and  are  severally  called  in  to  counsel 
him  but  they  have  not  necessarily  any  relations  with  one 
another,  nor  any  duty  of  collective  action.  So  while  the  Presi¬ 
dent  commits  each  department  to  the  minister  whom  the  law 
provides,  and  may  if  he  chooses  leave  it  altogether  to  that 
minister,  the  executive  acts  done  are  his  own  acts,  by  which 
the  country  will  judge  him ;  and  still  more  is  his  policy  as 
a  whole  his  own  policy,  and  not  the  policy  of  his  ministers 
taken  together.  The  ministers  meet  in  council,  but  have  com¬ 
paratively  little  to  settle  when  they  meet,  since  they  have 
no  parliamentary  tactics  to  contrive,  no  bills  to  prepare,  few 
problems  of  foreign  policy  to  discuss.  They  are  not  a  govern¬ 
ment,  as  Europeans  understand  the  term;  they  are  a  group  of 
heads  of  departments,  whom  their  chief,  though  he  usually 
consults  them  separately,  often  finds  it  useful  to  bring  to¬ 
gether  in  one  room  for  a  talk  about  politics,  or  to  settle  some 
administrative  question  which  lies  on  the  borderland  between 
the  provinces  of  two  ministers. 


CHAPTEE  IX 


THE  SENATE 

The  National  Legislature  of  the  United  States,  called  Con¬ 
gress,  consists  of  two  bodies,  sufficiently  dissimilar  in  compo¬ 
sition,  powers,  and  character  to  require  a  separate  description. 

The  Senate  consists  of  two  persons  from  each  State,  who 
must  be  inhabitants  of  that  State,  and  at  least  thirty  years  of 
age.  They  are  elected  by  the  legislature  of  their  State  for  six 
years,  and  are  re-eligible.  One-third  retire  every  two  years, 
so  that  the  whole  body  is  renewed  in  a  period  of  six  years,  the 
old  members  being  thus  at  any  given  moment  twice  as  numer¬ 
ous  as  the  new  members  elected  within  the  last  two  years. 
No  senator  can  hold  any  office  under  the  United  States.  The 
Vice-President  of  the  Union  is  ex  officio  president  of  the  Senate, 
but  has  no  vote,  except  a  casting  vote  when  the  numbers  are 
equally  divided.  Tailing  him  (if,  for  instance,  he  dies,  or  falls 
sick,  or  succeeds  to  the  presidency),  the  Senate  chooses  one  of 
its  number  to  be  president  pro  tempore.  His  authority  in  ques¬ 
tions  of  order  is  very  limited,  the  decision  of  such  questions 
being  held  to  belong  to  the  Senate  itself. 

The  functions  of  the  Senate  fall  into  three  classes  —  legis¬ 
lative,  executive,  and  judicial.1  Its  legislative  function  is  to 
pass,  along  with  the  House  of  Eepresentatives,  bills  which 
become  Acts  of  Congress  on  the  assent  of  the  President,  or 
even  without  his  consent  if  passed  a  second  time  by  a  two- 
thirds  majority  of  each  House,  after  he  has  returned  them 
for  reconsideration.  Its  executive  functions  are :  —  (a)  To 
approve  or  disapprove  the  President’s  nominations  of  Federal 
officers,  including  judges,  ministers  of  state,  and  ambassadors. 

1  To  avoid  prolixity,  I  do  not  set  forth  all  the  details  of  the  constitutional 
powers  and  duties  of  the  Houses  of  Congress :  these  will  be  found  in  the  text 
of  the  Constitution  printed  in  the  Appendix, 


71 


72 


THE  NATIONAL  GOVERNMENT 


PART  I 


(b)  To  approve,  by  a  majority  of  two-thirds  of  those  present, 
of  treaties  made  by  the  President  —  i.e.  if  less  than  two-thirds 
approve,  the  treaty  falls  to  the  ground.  Its  judicial  function 
is  to  sit  as  a  court  for  the  trial  of  impeachments  preferred  by 
the  House  of  Representatives. 

The  most  conspicuous,  and  what  was  at  one  time  deemed  the 
most  important  feature  of  the  Senate,  is  that  it  represents  the 
several  States  of  the  Union  as  separate  commonwealths,  and  is 
thus  an  essential  part  of  the  Federal  scheme.  Every  State,  be 
it  as  great  as  Hew  York  or  as  small  as  Delaware,  sends  two 
senators,  no  more  and  no  less.  This  arrangement  was  long 
resisted  by  the  delegates  of  the  larger  States  in  the  Conven¬ 
tion  of  1787,  and  ultimately  adopted  because  nothing  less 
would  reassure  the  smaller  States,  who  feared  to  be  overborne 
by  the  larger.  It  is  now  the  provision  of  the  Constitution 
most  difficult  to  change,  for  “  no  State  can  be  deprived  of  its 
equal  suffrage  in  the  Senate  without  its  consent,”  a  consent 
most  unlikely  to  be  given.  There  has  never,  in  point  of  fact, 
been  any  division  of  interests  or  consequent  contests  between 
the  great  States  and  the  small  ones.1 

The  Senate  also  constitutes,  as  Hamilton  anticipated,  a.  link 
between  the  State  governments  and  the  National  government. 
It  is  a  part  of  the  latter,  but  its  members  derive  their  title  to  sit 
in  it  from  their  choice  by  State  legislatures.  In  one  respect 
this  connection  is  no  unmixed  benefit,  for  it  has  helped  to  make 
the  national  parties  powerful,  and  their  strife  intense,  in  these 
last-named  bodies.  Every  vote  in  the  Senate  is  so  important 
to  the  great  parties  that  they  are  forced  to  struggle  for  ascend¬ 
ency  in  each  of  the  State  legislatures  by  whom  the  senators 
are  elected.  The  method  of  choice  in  these  bodies  was  formerly 
left  to  be  fixed  by  the  laws  of  each  State,  but  as  this  gave  rise 
to  much  uncertainty  and  intrigue,  a  Federal  statute  was  passed 
in  1866  providing  that  each  House  of  a  State  legislature  shall 
first  vote  separately  for  the  election  of  a  Federal  senator,  and 
that  if  the  choice  of  both  Houses  shall  not  fall  on  the  same 
person,  both  Houses  in  joint  meeting  shall  proceed  to  a  joint 
vote,  a  majority  of  all  the  members  elected  to  both  Houses 
being  present  and  voting.  Even  under  this  arrangement,  a 

1  Hamilton  perceived  that  this  would  he  so ;  see  his  remarks  in  the  Consti¬ 
tutional  Convention  of  New  York  in  1788.  —  Elliot’s  Debates,  p.  213. 


CHAP.  IX 


THE  SENATE 


73 


senatorial  election  often  leads  to  long  and  bitter  struggles;  the 

minority  endeavouring  to  prevent  a  choice,  and  so  keep  the  seat 
vacant. 

The  method  of  choosing  the  Senate  by  indirect  election  has 
excited  the  admiration  of  foreign  critics,  who  have  found  in  it 
a  sole  and  sufficient  cause  of  the  excellence  of  the  Senate- as  a 
legislative  and  executive  authority.  I  shall  presently  inquire 
whether  the  critics  are  right*  Meantime  it  is  worth  observing 
that  the  election  of  senators  has  in  substance  almost  ceased 
to  be  indiiect.  They  are  still  nominally  chosen,  as  under  the 
letter  of  the  Constitution  they  must  be  chosen,  by  the  State 
legislatures.  The  State  legislature  means,  of  course,  the  party 
for  the  time  dominant,  which  holds  a  party  meeting  (caucus) 
and  decides  on  the  candidate,  who  is  thereupon  elected,  the 
paity  going  solid  for  whomsoever  the  majority  has  approved. 
Now  the  determination  of  the  caucus  has  very  often  been 
ananged  beforehand  by  the  party  managers.  Sometimes  when 
a  vacancy  in  a  senatorship  approaches,  the  aspirants  for  it  put 
themselves  before  the  people  of  the  State.  Their  names  are 
discussed  at  the  State  party  convention  held  for  the  nomina¬ 
tion  of  party  candidates  for  State  offices,  and  a  vote  in  that 
convention  decides  who  shall  be  the  party  nominee  for  the 
senatorship.  This  vote  binds  the  party  within  and  without 
the  State  legislature,  and  at  the  election  of  members  for  the 
State  legislature,  which  immediately  precedes  the  occurrence 
of  the  senatorial  vacancy,  candidates  for  seats  in  that  legis¬ 
lature  are  frequently  expected  to  declare  for  which  aspirant 
to  the  senatorship  they  will,  if  elected,  give  their  votes.1 

Sometimes  the  aspirant,  who  is  of  course  a  leading  State 
politician,  goes  on  the  stump  in  the  interest  of  those  candi¬ 
dates  for  the  legislature  who  are  prepared  to  support  him, 
and  urges  his  own  claims  while  urging  theirs.  I  do  not  say 
that  things  have,  in  most  States,  gone  so  far  as  to  make 
the  choice  by  the  legislature  of  some  particular  person  as 
senator  a  foregone  conclusion  when  the  legislature  has  been 

1  The  Constitution  of  the  State  of  Nebraska  (1875)  allows  the  electors  in 
voting  for  members  of  the  State  legislature  to  “  express  by  ballot  their  prefer¬ 
ence  for  some  person  for  the  office  of  U.  S.  senator.  The  votes  cast  for  such 
candidates  shall  be  canvassed  and  returned  in  the  same  manner  as  for  State 
officers.^  This  is  an  attempt  to  evade  and  by  a  side  wind  defeat  the  provision 
of  the  b  ederal  Constitution  which  vests  the  choice  in  the  legislature. 


74 


THE  NATIONAL  GOVERNMENT 


PART  I 


elected.  Circumstances  may  change;  compromises  may  be 
necessary ;  still,  it  is  now  generally  true  that  a  reduced  free¬ 
dom  of  choice  remains  with  the  legislature.  The  people,  or 
rather  those  wirepullers  who  manage  the  people  and  act.  in 
their  name,  have  usually  settled  the  matter  at  the  election 
of  the  State  legislature.  So  hard  is  it  to  make  any  scheme  of 
indirect  election  work  according  to  its  original  design ;  so  hard 
is  it  to  keep  even  a  written  and  rigid  Constitution  from  bend¬ 
ing  and  warping  under  the  actual  forces  of  politics. 

Members  of  the  Senate  vote  as  individuals,  that  is  to  say, 
the  vote  a  senator  gives  is  his  own  and  not  that  of  his  State. 
It  was  otherwise  in  the  Congress  of  the  old  Confederation 
before  1789.  Now  the  two  senators  from  a  State  may  belong 
to  opposite  parties ;  and  this  often  happens  in  the  case  of  sen¬ 
ators  from  States  in  which  the  two  great  parties  are  pretty 
equally  balanced,  and  the  majority  oscillates  between  them.1 
As  the  State  legislatures  sit  for  short  terms  (the  larger  of  the 
two  houses  usually  for  two  years  only),  a  senator  has  during 
the  greater  part  of  his  six  years’  term  to  look  for  re-election 
not  to  the  present  but  to  a  future  State  legislature,2  and  this 
circumstance  tends  to  give  him  somewhat  more  independence. 

The  length  of  the  senatorial  term  was  one  of  the  provisions 
of  the  Constitution  which  were  most  warmly  attacked  and 
defended  in  1788.  A  six  years’  tenure,  it  was  urged,  would 
turn  the  senators  into  dangerous  aristocrats,  forgetful  of  the 
legislature  which  had  appointed  them ;  and  some  went  so  far 
as  to  demand  that  the  legislature  of  a  State  should  have  the 
right  to  recall  its  senators.3  Experience  has  shown  that  the 
term  is  by  no  means  too  long ;  and  its  length  is  one  among  the 
causes  which  have  made  it  easier  for  senators  than  for  members 

1  It  was  arranged  from  the  beginning  of  the  Federal  government  that  the 
two  senatorships  from  the  same  State  should  never  he  vacant  at  the  same 

2  If  a  vacancy  occurs  in  a  senatorship  at  a  time  when  the  State  legislature 
is  not  sitting,  the  executive  of  the  State  is  empowered  to  fill  it  up  until  the  next 
meeting  of  the  State  legislature.  This  power  is  specially  important  if  the 
vacancy  occurs  at  a  time  when  parties  are  equally  divided  in  the  Senate. 

3  This  was  recommended  hy  a  Pennsylvanian  Convention,  which  met  after 
the  adoption  of  the  Constitution  to  suggest  amendments.  See  Elliot’s  Debates , 
ii.  p.  545.  A  State  legislature  sometimes  passes  resolutions  instructing  its 
senators  to  vote  in  a  particular  way,  but  the  senators  are  of  course  in  no  way 
hound  to  regard  such  instructions. 


CHAP.  IX 


THE  SENATE 


75 


of  the  House  to  procure  re-election,  —  a  result  which,  though  it 
offends  the  doctrinaires  of  democracy,  has  worked  well  for  the 
country.  Senators  from  the  smaller  States  are  more  frequently 
re-elected  than  those  from  the  larger,  because  in  the  small  States 
the  competition  of  ambitious  men  is  less  keen,  politics  less 
changeful,  the  people  perhaps  more  steadily  attached  to  a  man 
whom  they  have  once  honoured  with  their  confidence.  The  sen¬ 
ator  from  such  a  State  generally  finds  it  more  easy  to  maintain 
his  influence  over  his  own  legislature ;  not  to  add  that  if  the 
State  should  be  amenable  to  the  power  of  wealth,  his  wealth 
will  tell  far  more  than  it  could  in  a  large  State.  The  average 
age  of  the  Senate  is  less  than  might  be  expected.  Three-fourths 
of  its  members  are  under  sixty.  The  importance  of  the  State 
he  represents  makes  no  great  difference  to  the  influence  which 
a  senator  enjoys ;  this  depends  on  his  talents,  experience,  and 
character ;  and  as  the  small  State  senators  have  often  the  ad¬ 
vantage  of  long  service  and  a  safe  seat,  they  are  often  among 
the  most  influential. 

The  Senate  resembles  the  Upper  Houses  of  Europe,  and 
differs  from  those  of  the  British  colonies,  and  of  most  of  the 
States  of  the  Union,  in  being  a  permanent  body.  It  is  an  un¬ 
dying  body,  with  an  existence  continuous  since  its  first  creation ; 
and  though  it  changes,  it  does  not  change  all  at  once,  as  do 
assemblies  created  by  a  single  popular  election,  but  undergoes 
an  unceasing  process  of  gradual  renewal,  like  a  lake  into 
which  streams  bring  fresh  water  to  replace  that  which  the 
issuing  river  carries  out.  As  Harrington  said  of  the  Venetian 
Senate,  “  being  always  changing,  it  is  forever  the  same.”  This 
provision  was  designed  to  give  the  Senate  that  permanency  of 
composition  which  might  qualify  it  to  conduct  or  control  the 
foreign  policy  of  the  nation.  An  incidental  and  more  valuable 
result  has  been  the  creation  of  a  set  of  traditions  and  a  corpo¬ 
rate  spirit  which  have  tended  to  form  habits  of  dignity  and 
self-respect.  The  new  senators,  being  comparatively  few,  are 
readily  assimilated ;  and  though  the  balance  of  power  shifts 
from  one  party  to  another  according  to  the  predominance  in 
the  State  legislatures  of  one  or  other  party,  it  shifts  more 
slowly  than  in  bodies  directly  chosen  all  at  once,  and  a  policy 
is  therefore  less  apt  to  be  suddenly  reversed. 

The  legislative  powers  of  the  Senate  being,  except  in  onq 


76 


THE  NATIONAL  GOVERNMENT 


PART  I 


point,  the  same  as  those  of  the  House  of  Representatives,  will 
be  described  later.  That  one  point  is  a  restriction  as  regards 
money  bills.  On  the  grounds  that  it  is  only  by  the  diiect  lep- 
resentatives  of  the  people  that  taxes  ought  to  be  levied,  and  in 
obvious  imitation  of  the  venerable  English  doctrine,  which  had 
already  found  a  place  in  several  State  constitutions,  the  Consti¬ 
tution  (Art.  i.  §  7)  provides  that  “  All  bills  for  raising  revenue 
shall  originate  in  the  House  of  Representatives,  but  the  Senate 
may  propose  or  concur  with  amendments,  as  on  other  bills.” 
In  practice,  while  the  House  strictly  guards  its  light  of  oiigina- 
tion,  the  Senate  largely  exerts  its  power  of  amendment,  and 
wrangles  with  the  House  over  taxes,  and  still  more  keenly 
over  appropriations.  Almost  every  session  ends  with  a  dis¬ 
pute,  a  conference,  a  compromise. 

Among  the  rules  there  is  none  providing  for  a  closure  of 
debate  (although  an  attempt  to  introduce  such  a  rule  was  made 
by  Henry  Clay,  and  renewed  in  1890),  nor  any  limiting  the 
length  either  of  a  debate  or  of  a  speech.  The  Senate  is  proud 
of  having  conducted  its  business  without  the  aid  of  such  regu¬ 
lations,  and  this  has  been  due,  not  merely  to  the  small  size  of 
the  assembly,  but  to  the  sense  of  its  dignity  which  has  usually 
pervaded  its  members,  and  to  the  power  which  the  opinion  of 
the  whole  body  has  exercised  on  each.  Where  every  man 
knows  his  colleagues  intimately,  each,  if  he  has  a  chaiacter  to 
lose,  stands  in  awe  of  the  others,  and  has  so  strong  a  sense 
of  his  own  interest  in  maintaining  the  moral  authority  of  the 
Chamber,  that  he  is  slow  to  resort  to  methods  which  might 
lower  it  in  public  estimation.  Till  recently,  systematic  ob¬ 
struction,  or,  as  it  is  called  in  America,  “  filibustering,”  famil¬ 
iar  to  the  House,  was  almost  unknown  in  the  calmer  air  of  the 
Senate.  When  it  was  applied  some  years  ago  by  the  Demo¬ 
cratic  senators  to  stop  a  bill  to  which  they  strongly  objected, 
their  conduct  was  not  disapproved  by  the  country,  because  the 
whole  party,  a  minority  very  little  smaller  than  the  Republi¬ 
can  majority,  supported  it,  and  people  believed  that  nothing 
but  some  strong  reason  would  have  induced  the  whole  party  so 
to  act.  Accordingly  the  majority  yielded. 

Divisions  are  taken,  not  by  separating  the  senators  into 
lobbies  and  counting  them,  as  in  the  British  Parliament,  but 
by  calling  the  names  of  senators  alphabetically.  The  Constitu- 


CHAP.  IX 


THE  SENATE 


77 


tion  provides  tliat  one-fifth  of  those  present  may  demand  that 
the  Yeas  and  Nays  be  entered  in  the  journal.  Every  senator 
answers  to  his  name  with  Aye  or  No.  He  may,  however,  ask 
the  leave  of  the  Senate  to  abstain  from  voting;  and  if  he  is 
paired,  he  states,  when  his  name  is  called,  that  he  has  paired 
with  such  and  such  another  senator,  and  is  thereupon  excused. 

When  the  Senate  goes  into  executive  session,  the  galleries 
are  cleared  and  the  doors  closed ;  and  the  obligation  of  secrecy 
is  supposed  to  be  enforced  by  the  penalty  of  expulsion  to 
which  a  senator,  disclosing  confidential  proceedings,  makes 
himself  liable.  Practically,  however,  newspaper  men  find 
little  difficulty  in  ascertaining  what  passes  in  secret  session. 
The  threatened  punishment  has  never  been  inflicted,  and 
occasions  often  arise  when  senators  feel  it  to  be  desirable  that 
the  public  should  know  what  their  colleagues  have  been  doing. 
There  has  been  for  some  time  past  a  movement  within  the  Sen¬ 
ate  against  maintaining  secrecy,  particularly  with  regard  to  the 
confirming  of  nominations  to  office ;  and  there  is  also  a  belief 
in  the  country  that  publicity  would  make  for  purity.  But 
while  some  of  the  black  sheep  of  the  Senate  love  darkness 
because  their  works  are  evil,  other  members  of  undoubted 
respectability  defend  the  present  system  because  they  think  it 
supports  the  power  and  dignity  of  their  body. 


CHAPTER  X 


THE  SENATE  AS  AN  EXECUTIVE  AND  JUDICIAL  BODY 

The  Senate  is  not  only  a  legislative  but  also  an  executive 
Chamber;  in  fact  in  its  early  days  the  executive  functions 
seem  to  have  been  thought  the  more  important ;  and  Ham¬ 
ilton  went  so  far  as  to  speak  of  the  national  executive 
authority  as  divided  between  two  branches,  the  President  and 
the  Senate.  These  executive  functions  are  two,  the  power  of 
approving  treaties,  and  that  of  confirming  nominations  to 

office  submitted  by  the  President. 

To  what  has  already  been  said  regarding  the  functions  ot 
the  President  and  Senate  as  regards  treaties  I  need  only 
add  that  the  Senate,  through  its  right  of  confirming  or  re¬ 
jecting  engagements  with  foreign  powers,  secures  a  general 
control  over  foreign  policy ;  though  it  must  be  remembered 
that  many  of  the  most  important  acts  done  in  this  sphere 
(as  for  instance  the  movement  of  troops  or  ships)  are  purely 
executive  acts,  not  falling  under  this  control.  It  is  in  the 
discretion  of  the  President  whether  he  will  communicate 
current  negotiations  to  it  and  take  its  advice  upon  them, 
or  will  say  nothing  till  he  lays  a  completed  treaty  before 
it.  One  or  other  course  is  from  time  to  time  followed, 
according  to  the  nature  of  the  case,  or  the  degiee  of  friend 
liness  existing  between  the  President  and  the  majority  of  the 
Senate.  But  in  general,  the  President’s  best  policy  is  to  keep 
the  leaders  of  the  senatorial  majority,  and  in  particular  the 
committee  on  Eoreign  Relations,  informed  of  the  progress  of 
any  pending  negotiation.  He  thus  feels  the  pulse  of  the 
Senate,  which,  like  other  assemblies,  has  a  collective  self¬ 
esteem  leading  it  to  strive  for  all  the  information  and  power  it 
can  secure,  and  while  keeping  it  in  good  humour,  can  foresee 
what  kind  of  arrangement  it  may  be  induced  to  sanction.  The 

78 


chap,  x  SENATE:  EXECUTIVE  AND  JUDICIAL  BODY 


79 


right  of  going  into  secret  session  enables  the  whole  Senate 
to  consider  despatches  communicated  by  the  President;  and 
the  more  important  ones,  having  first  been  submitted  to  the 
Foreign  Relations  committee,  are  thus  occasionally  discussed 
without  the  disadvantage  of  publicity.  Of  course  no  momen¬ 
tous  secret  can  be  long  kept,  even  by  the  committee,  according 
to  the  proverb  in  the  Elder  Edda  —  “  Tell  one  man  thy  secret* 
but  not  two ;  if  three  know,  the  world  knows.” 

This  control  of  foreign  policy  by  the  Senate  goes  far  to 
meet  the  difficulties  which  every  free  government  finds  in 
dealing  with  foreign  Powers.  If  each  step  to  be  taken  must 
be  previously  submitted  to  the  governing  assembly,  the  nation 
is  foiced  to  show  its  whole  hand,  and  precious  opportunities 
of  winning  an  ally  or  striking  a  bargain  may  be  lost.  If  on 
the  other  hand  the  executive  is  permitted  to  conduct  negotia¬ 
tions  in  secret,  there  is  always  the  risk,  either  that  the  assem¬ 
bly  may  disavow  what  has  been  done,  a  risk  which  makes 
foreign  States  legitimately  suspicious  and  unwilling  to  nego¬ 
tiate,  or  that  the  nation  may  have  to  ratify,  because  it  feels 
bound  in  honour  by  the  act  of  its  executive  agents,  arrange¬ 
ments  which  its  judgment  condemns.  The  frequent  participa¬ 
tion  of  the  Senate  in  negotiations  diminishes  these  difficulties, 
because  it  apprises  the  executive  of  what  the  judgment  of  the 
ratifying  body  is  likely  to  be,  and  it  commits  that  body  by 
advance.  The  necessity  of  ratification  by  the  Senate  in  order 
to  give  effect  to  a  treaty,  enables  the  country  to  retire  from  a 
doubtful  bargain,  though  in  a  way  which  other  Powers  find 
disagreeable,  as  England  did  when  the  Senate  rejected  the 
Reverdy  Johnson  treaty  of  1869.  European  statesmen  may 
ask  what  becomes  under  such  a  system  of  the  boldness  and 
promptitude  so  often  needed  to  effect  a  successful  coup  in  for- 
eign  policy,  or  how  a  consistent  attitude  can  be  maintained  if 
there  is  in  the  chairman  of  the  Foreign  Relations  committee  a 
sort  of  second  foreign  secretary.  The  answer  is  that  America 
is  not  Europe.  The  problems  which  the  Foreign  Office  of  the 
United  States  has  to  deal  with  are  far  fewer  and  usually  far 
simpler  than  those  of  the  Old  "World.  The  Republic  keeps 
consistently  to  her  own  side  of  the  Atlantic ;  nor  is  it  the 
least  of  the  merits  of  the  system  of  senatorial  control  that  it 
has  tended,  by  discouraging  the  executive  from  schemes  which 


80 


THE  NATIONAL  GOVERNMENT 


part  l 


may  prove  resultless,  to  diminish  the  taste  for  foreign  enter¬ 
prises,  and  to  save  the  country  from  being  entangled  with 
alliances,  protectorates,  responsibilities  of  all  sorts  beyond  its 

own  frontiers.  , 

The  Senate  may  and  occasionally  does  amend  a  treaty,  and 

return  it  amended  to  the  President.  There  is  nothing  to  pre¬ 
vent  it  from  proposing  a  draft  treaty  to  him,  or  asking  him  o 
prepare  one,  but  this  is  not  the  practice.  Por  ratification  a 
vote  of  two-thirds  of  the  senators  present  is  required.  1  ns 
gives  great  power  to  a  vexatious  minority,  and  increases  the 
danger,  evidenced  by  several  incidents  in  the  history  of  the 
Union,  that  the  Senate  or  a  faction  in  it  may  deal  with  foreign 
policy  in  a  narrow,  sectional,  electioneering  spirit.  When  the 
interest  of  any  group  of  States  is,  or  is  supposed  to  be,  against 
the  making  of  a  given  treaty,  that  treaty  may  be  defeated  by 
the  senators  from  those  States.  They  tell  the  other  senators 
of  their  own  party  that  the  prospects  of  the  party  m  the  dis¬ 
trict  of  the  country  whence  they  come  will  be  improved  if  tie 
treaty  is  rejected  and  a  bold  aggressive  line  is  taken  m  further 
negotiations.  Some  of  these  senators,  who  care  more  for  the 
party  than  for  justice  or  the  common  interests  of  the  country, 
rally  to  the  cry,  and  all  the  more  gladly  if  their  party  is 
opposed  to  the  President  in  power,  because  in  defeating  the 
trehty  they  humiliate  his  administration.  Thus  the  treaty 
may  be  rejected,  and  the  settlement  of  the  question  at  issue 
indefinitely  postponed.  It  may  be  thought  that  a  party  acting 
in  this  vexatious  way  will  suffer  in  public  esteem.  This  hap¬ 
pens  in  extreme  cases;  but  the  public  are  usually  so .  indif¬ 
ferent  to  foreign  affairs,  and  so  little  skilled  in  judging  of 
them,  that  offences  of  the  kind  described  may  be  committed 
with  practical  impunity.  It  is  harder  to  fix  responsibility  on  a 
body  of  senators  than  on  the  executive;  and  whereas  the  ex¬ 
ecutive  has  usually  an  interest  in  settling  diplomatic  troubles, 
whose  continuance  it  finds  annoying,  the  Senate  has  no  such 
interest,  but  is  willing  to  keep  them  open  so  long  as  some 
political  advantage  can  be  sucked  out  of  them. 

Does  the  control  of  the  Senate  operate  to  prevent  abuses  of 
patronage  by  the  President  ?  To  some  extent  it  does,  yet  less 
completely  than  could  be  wished.  When  the  majority  belongs 
to  the  same  party  as  the  President,  appointments  are  usual  y 


chap,  x  SENATE:  EXECUTIVE  AND  JUDICIAL  BODY 


81 


arranged  between  them,  with  a  view  primarily  to  party  interests. 
When  the  majority  is  opposed  to  the  President,  they  are  tempted 
to  agree  to  his  worst  appointments,  because  such  appointments 
discredit  him  and  his  party  with  the  country,  and  become  a  theme 
of  hostile  comment  in  the  next  electioneering  campaign.  As 
the  initiative  is  his,  it  is  the  nominating  President,  and  not  the 
confirming  Senate,  whom  public  opinion  will  condemn.  These 
things  being  so,  it  may  be  doubted  whether  this  executive  func¬ 
tion  of  the  Senate  is  now  a  valuable  part  of  the  Constitution.  It 
was  designed  to  prevent  the  President  from  making  himself  a 
tyrant  by  filling  the  great  offices  with  his  accomplices  or  tools. 
That  danger  has  passed  away,  if  it  ever  existed;  and  Congress 
has  other  means  of  muzzling  an  ambitious  chief  magistrate. 
The  more  fully  responsibility  for  appointments  can  be  concen¬ 
trated  upon  him,  and  the  fewer  the  secret  influences  to  which 
he  is  exposed,  the  better  will  his  appointments  be.  On  the 
other  hand,  it  must  be  admitted  that  the  participation  of  the 
Senate  causes  in  practice  less  friction  and  delay  than  might 
have  been  expected  from  a  dual  control.  The  appointments  to 
the  Cabinet  offices  are  confirmed  as  a  matter  of  course.  Those 
of  diplomatic  officers  are  seldom  rejected.  “ Little  tiffs”  are 
frequent  when  the  senatorial  majority  is  in  opposition  to  the 
executive,  but  the  machinery,  if  it  does  .  not  work  smoothly, 
works  well  enough  to  carry  on  the  ordinary  business  of  the 
country,  though  a  European  observer,  surprised  that  a  demo¬ 
cratic  country  allows  such  important  business  to  be  transacted 
with  closed  doors,  is  inclined  to  agree  with  the  view  lately 
advanced  in  the  Senate  that  nominations  ought  to  be  discussed 
publicly  rather  than  in  secret  executive  session. 

The  judicial  function  of  the  Senate  is  to  sit  as  a  High  Court 
for  the  trial  of  persons  impeached  by  the  House  of  Representa¬ 
tives.  The  senators  “  are  on  oath  or  affirmation,”  and  a  vote 
of  two-thirds  of  those  present  is  needed  for  a  conviction.  Of 
the  process,  as  affecting  the  President,  I  have  spoken  in  Chap¬ 
ter  IV.  It  is  applicable  to  other  officials.  Besides  President 
J ohnson,  six  persons  in  all  have  been  impeached,  viz. :  — 

Pour  Federal  judges,  of  whom  two  were  acquitted,  and  two 
convicted,  one  for  violence  and  drunkenness,  the  other  for  having 
joined  the  Secessionists  of  1861.  Impeachment  is  the  only 
means  by  which  a  Federal  judge  can  be  got  rid  of. 

G 


82 


THE  NATIONAL  GOVERNMENT 


PART  I 


One  senator,  who  was  acquitted  for  want  of  jurisdiction,  the 
Senate  deciding  that  a  senatorship  is  not  a  “  civil  office  ” 
within  the  meaning  of  Art.  iii.  §  4  of  the  Constitution. 

One  minister,  a  secretary  of  war,  who  resigned  before  the 
impeachment  was  actually  preferred,  and  escaped  on  the 
ground  that  being  a  private  person  he  was  not  impeachable. 
&  Rarely  as  this  method  of  proceeding  has  been  employed,  it 
could  not  be  dispensed  with ;  and  it  is  better  that  the  Senate 
should  try  cases  in  which  a  political  element  is  usually  present, 
than  that  the  impartiality  of  the  Supreme  Court  should  be 
exposed  to  the  criticism  it  would  have  to  bear,  did  political 
questions  come  before  it.  Many  senators  are  or  have  been 
lawyers  of  eminence,  so  that  so  far  as  legal  knowledge  goes 
they  are  competent  members  of  a  court. 


CHAPTER  XI 


THE  SENATE:  ITS  WORKING  AND  INFLUENCE 

The  Americans  consider  the  Senate  one  of  the  successes 
of  their  Constitution,  a  worthy  monument  of  the  wisdom  and 
foresight  of  its  founders.  Foreign  observers  have  repeated 
this  praise,  and  have  perhaps,  in  their  less  perfect  knowledge 
sounded  it  even  more  loudly. 

.  The  aims  with  which  the  Senate  was  created,  the  purposes 
it  was  to  fulfil,  are  set  forth,  under  the  form  of  answers  to 
objections,  in  five  letters  (lxi.-lxv.),  all  by  Alexander  Hamil¬ 
ton,  in  the  Federalist.1  These  aims  are  the  five  following : _ 

To  conciliate  the  spirit  of  independence  in  the  several  States, 
by  giving  each,  however  small,  equal  representation  with  every 
other,  however  large,  in  one  branch  of  the  National  government. 

To  create  a  council  qualified,  by  its  moderate  size  and  the 
experience  of  its  members,  to  advise  and  check  the  President 
m  the  exercise  of  his  powers  of  appointing  to  office  and  con¬ 
cluding  treaties. 

To  restrain  the  impetuosity  and  fickleness  of  the  popular 
House,  and  so  guard  against  the  effects  of  gusts  of  passion  or 
sudden  changes  of  opinion  in  the  people. 

To  provide  a  body  of  men  whose  greater  experience,  longer 
term  of  membership,  and  comparative  independence  of  popular 
election,  would  make  them  an  element  of  stability  in  the  gov¬ 
ernment  of  the  nation,  enabling  it  to  maintain  its  character 
m  the  eyes  of  foreign  States,  and  to  preserve  a  continuity  of 
policy  at  home  and  abroad. 

Nlo  establish  a  Court  proper  for  the  trial  of  impeachments, 

a  remedy  deemed  necessary  to  prevent  abuse  of  power  by  the 
executive. 

1  See  also  Hamilton’s  speeches  in  the  New  York  Convention. —  Elliot’s 
Debates,  n.  p.  301  sqq. 


83 


84 


THE  NATIONAL  GOVERNMENT 


PART  i 


All  of  these  five  objects  have  been  more  or  less  perfectly 
attained ;  and  the  Senate  has  acquired  a  position  in  the  gov¬ 
ernment  which  Hamilton  scarcely  ventured  to  hope  for.  In 
1788  he  wrote :  “  Against  the  force  of  the  immediate  repre¬ 
sentatives  of  the  people  nothing  will  be  able  to  maintain  even 
the  constitutional  authority  of  the  Senate,  but  such  a  display 
of  enlightened  policy,  and  attachment  to  the  public  good,  as 
will  divide  with  the  House  of  Representatives  the  affections 
and  support  of  the  entire  body  of  the  . people  themselves.” 

It  may  be  doubted  whether  the  Senate  has  excelled  the 
House  in  attachment  to  the  public  good ;  but  it  has .  certainly 
shown  greater  capacity  for  managing  the  public  business,  and 
has  won  the  respect,  if  not  the  affections,  of  the  people,  by  its 
sustained  intellectual  power. 

The  Federalist  did  not  think  it  necessary  to  state,  nor  have 
Americans  generally  realized,  that  this  masterpiece  of  the 
Constitution-makers  was  in  fact  a  happy  accident.  No  one  in 
the  Convention  of  1787  set  out  with  the  idea  of  such  a  Senate 
as  ultimately  emerged  from  their  deliberations.  It  grew  up 
under  the  hands  of  the  Convention,  as  the  result  of  the  neces¬ 
sity  for  reconciling  the  conflicting  demands  of  the  large  and 
the  small  States.  The  concession  of  equal  representation  in 
the  Senate  induced  the  small  States  to  accept  the  principle  of 
representation  according  to  population  in  the  House  of  Rep¬ 
resentatives  ;  and  a  series  of  compromises  between  the  advo¬ 
cates  of  popular  power,  as  embodied  in  the  House,  and  those 
of  monarchical  power,  as  embodied  in  the  President,  led  to  the 
allotment  of  attributes  and  functions  which  have  made  the 
Senate  what  it  is. 

When  the  work  which  they  had  almost  unconsciously  per¬ 
fected  was  finished,  the  leaders  of  the  Convention  perceived 
its  excellence,  and  defended  it  by  arguments  in  which  we  feel 
the  note  of  sincere  conviction.  Yet  the  conception  they  formed 
of  it  differed  from  the  reality  which  has  been  evolved.  Al¬ 
though  they  had  created  it  as  a  branch  of  the  legislature,  they 
thought  of  it  as  being  first  and  foremost  a  body  with  executive 
functions.  And  this,  at  first,  it  was.  The  traditions  of  the 
old  Congress  of  the  Confederation,  in  which  the  delegates  of 
the  States  voted  by  States,  the  still  earlier  traditions  of  the 
executive  councils,  which  advised  the  governors  of  the  colonies 


CHAP.  XI 


SENATE:  WORKING  AND  INFLUENCE 


85 


while  still  subject  to  the  British  Crown,  clung  about  the  Sen- 
ate  and  affected  the  minds  of  the  senators.  It  was  a  small 
body,  originally  of  twenty-six,  even  in  1810  of  thirty-four 
members  only,  a  body  not  ill  fitted  for  executive  work.  Its 
members,  regarding  themselves  as  a  sort  of  congress  of  am 
bassaclors  from  their  respective  States,  were  accustomed  to 
refer  for  advice  and  instructions  each  to  his  State  legislature. 
So  late  as  1828,  a  senator  after  arguing  strongly  against  a 
measure  declared  that  he  would  nevertheless  vote  for  it  because 
he  believed  his  State  to  be  in  its  favour.1  ’ 

For  the  first  five  years  of  its  existence,  the  Senate  sat  with 
closed  doors,  occupying  itself  chiefly  with  the  confidential 
business  of  appointments  and  treaties,  and  conferring  in 
pitiate  with  the  ministers  of  the  President.  Hot  till  1816 
did  it  create,  in  imitation  of  the  House,  those  standing  com¬ 
mittees  which  the  experience  of  the  House  had  shown  to  be 
m  bodies  where  the  executive  ministers  do  not  sit,  the  neces¬ 
sary  organs  for  dealing  with  legislative  business.  Its  present 
character  as  a  legislative  body,  not  less  active  and  powerful 
than  the  other  branch  of  Congress,  is  the  result  of  a  long 
process  of  evolution,  a  process  possible  (as  will  be  more  fully 
explained  hereafter)  even  under  the  rigid  Constitution  of  the 
United  States,  because  the  language  of  the  sections  which 
define  the  competence  of  the  Senate  is  wide  and  general.  But 
m  gaming  legislative  authority,  it  has  not  lost  its  executive 
Junctions,  although  those  which  relate  to  treaties  are  largely 
exercised  on  the  advice  of  the  standing  committee  on  Foreign 
Relations.  And  as  respects  these  executive  functions  it  stands 
alone  in  the  world.  Ho  European  state,  no  British  colony 
entrusts  to  an  elective  assembly  that  direct  participation  in 
executiv e. business  which  the  Senate  enjoys. 

What  is  meant  by  saying  that  the  Senate  has  proved  a 
success  ? 

It  has  succeeded  by  effecting  that  chief  object  of  the  Fathers 
o  the  Constitution,  the  creation  of  a.  centre  of  gravity  in  the 


A  similar  statement  was  made  in  1883  by  a  senator  from  Arkansas  in  ius- 

downi  1  °r  a  bU1  hG  disaPPr°ved.  But  the  fact  that  from  early  days 

mimhlr  l8  Tat°rS  fr°m  a  State  might  <and  did>  ™te  against  one 

“  °ws  that  the  true  view  of  the  senator  is  that  he  represents  the 

people  and  not  the  government  of  his  State. 


86 


THE  NATIONAL  GOVERNMENT 


PART  i 


government,  an  authority  able  to  correct  and  check  on  the  one 
hand  the  “democratic  recklessness”  of  the  House,  on  the 
other  the  “  monarchical  ambition  ”  of  the  President.  Placed 
between  the  two,  it  is  necessarily  the  rival  and  often  the  oppo¬ 
nent  of  both.  The  House  can  accomplish  nothing  without  its 
concurrence.  The  President  can  be  checkmated  by  its  resist¬ 
ance  These  are,  so  to  speak,  negative  or  prohibitive  suc¬ 
cesses.  It  has  achieved  less  in  the  way  of  positive  work, 
whether  of  initiating  good  legislation  or  of  improving  the 
measures  which  the  House  sends  it.  But  ^e  whole  scheme 
of  the  American  Constitution  tends  to  put  stability  ab 
activity,  to  sacrifice  the  productive  energies  of  the  bodies  it 
creates1  to  their  power  of  resisting  changes  m  the  general 
fabric  of  the  government.  The  Senate  has  succeeded  in  mak¬ 
ing  itself  eminent  and  respected.  It  has  drawn  the  best  talent 
of  the  nation,  so  far  as  that  talent  flows  to  politics,  into  its 
body,  has  established  an  intellectual  supremacy,  has  furnished 
a  vantage  ground  from  which  men  of  ability  may  speak  with 

authority  to  their  fellow-citizens. 

To  what  causes  are  these  successes  to  be  ascribed  .  Ham 
ton  assumed  that  the  Senate  would  be  weaker  than  the  House 
of  Representatives,  because  it  would  not  so  directly  spring 
from,  speak  for,  be  looked  to  by,  the  people.  This  was  a 
natural  view,  especially  as  the  analogy  between  the  position 
of  the  Senate  towards  the  House  of  Representatives  m  Amer¬ 
ica  and  that  of  the  House  of  Lords  towards  the  House  of 
Commons  in  Great  Britain,  an  analogy  constantly  present  to 
the  men  of  1787,  seemed  to  suggest  that  the  larger  and  more 
popular  Chamber  must  dwarf  and  overpower  the  smaller  one. 
But  the  Senate  has  proved  no  less  strong,  and  more  intellect¬ 
ually  influential,  than  its  sister  House  of  Congress.  The 
analogy  was  unsound,  because  the  British  House  of  Lords  is 
hereditary  and  the  Senate  representative.  In  these  days  no 
hereditary  assembly,  be  its  members  ever  so  able,  ever  so 
wealthy,  ever  so  socially  powerful,  can  speak  with  the  au¬ 
thority  which  belongs  to  those  who  speak  for  the  people. 
Mirabeau’s  famous  words  in  the  Salle  des  Menus  at  Versailles 
« We  are  here  by  the  will  of  the  people,  and  nothing  but 
bayonets  shall  send  us  hence,”  express  the  whole  current  of 
modern  feeling.  Now  the  Senate,  albeit  not  chosen  by  direct 


CHAP.  XI 


SENATE:  WORKING  AND  INFLUENCE 


87 


popular  election,  does  represent  the  people;  and  what  it  may 
lose  through  not  standing  in  immediate  contact  with  the  masses 
it  gains  in  representing  such  ancient  and  powerful  common¬ 
wealths  as  the  States.  A  senator  from  New  York  or  Penn¬ 
sylvania  speaks  for,  and  is  responsible  to,  millions  of  men. 

This  is  the  first  reason  for  the  strength  of  the  Senate  as 
compared  with  the  upper  chambers  of  other  countries.  It  is 
built  on  a  wide  and  solid  foundation  of  choice  by  the  people 
and  consequent  responsibility  to  them.  A  second  cause  is  to 
e  ound  in  its  small  size.  A  small  body  educates  its  members 
better  than  a  large  one,  because  each  member  has  more  to  do 
sooner  masters  the  business  not  only  of  his  committee  but  of 
the  whole  body,  feels  a  livelier  sense  of  the  significance  of  his 
own  action  in  bringing  about  collective  action.  There  is  less 
disposition  to  abuse  the  freedom  of  debate.  Party  spirit  may 
be  as  intense  as  in  great  assemblies,  yet  it  is  mitigated  by  the 
wish  to  keep  on  friendly  terms  with  those  whom,  however 
much  you  may  dislike  them,  you  have  constantly  to  meet,  and 
by  the  feeling  of  a  common  interest  in  sustaining  the  author¬ 
ity  of  the  body.  A  senator  soon  gets  to  know  each  of  his 
colleagues  and  what  each  of  them  thinks  of  him ;  he  becomes 
sensitive  to  their  opinions ;  he  is  less  inclined  to  pose  before 
them,  however  he  may  pose  before  the  public.  Thus  the  Sen¬ 
ate  formed,  in  its  childhood,  better  habits  in  discussing  and 
transacting  its  business  than  would  have  been  formed  by  a 
large  assembly ;  and  these  habits  its  maturer  age  retains. 

Its  comparative  permanence  has  also  worked  for  good.  Six 
years,  which  seem  a  short  term  in  Europe,  are  in  America  a 
long  term  when  compared  with  the  two  years  for  which  the 
House  of  Representatives  and  the  Assemblies  of  nearly  all 
the  States  are  elected,  long  also  when  compared  with  the 
swiftness  of  change  in  American  politics.  A  senator  has  the 
opportunity  of  thoroughly  learning  his  work,  and  of  proving 
t  lathe  has  learnt  it.  He  becomes  slightly  more  independent 
of  his  constituency,  which  in  America,  where  politicians  catch 
at  every  passing  breeze  of  opinion,  is  a  clear  gain.  He  is 
relieved  a  little,  though  only  a  little,  of  the  duty  of  going  on 
the  stump  in  his  State,  and  maintaining  his  influence  among 
local  politicians  there. 

Ihe  smallness  and  the  permanence  of  the  Senate  have 


PART  I 


THE  NATIONAL  GOVERNMENT 


however  another  important  influence  on  its  character.  They 
contribute  to  one  main  cause  of  its  success,  the  superior  mte  - 
lectual  quality  of  its  members.  Every  European  who  has 
described  it,  has  dwelt  upon  the  capacity  of  those  who  com- 
pose  it,  and  most  have  followed  Tocqueville  in  attributing  this 
capacity  to  the  method  of  double  election.  The  choice  of  sen¬ 
ators  by  the  State  legislature  is  supposed  (but  I  think  errone¬ 
ously)  to  have  proved  a  better  means  than  direct  choice  by  the 
people  of  discovering  and  selecting  the  fittest  men.  I  have 
already  remarked  that  the  legislatures  now  do  little  more  than 
register  and  formally  complete  a  choice  already  made  by  the 
party  managers,  and  perhaps  ratified  in  the  party  convention, 
and  am  inclined  to  believe  that  direct  popular  election  would 
work  better.  But  apart  from  this  recent  development,  and 
reviewing  the  whole  hundred  years’  history  of  the  Senate,  the 
true  explanation  of  its  capacity  is  to  be  found  in  the  superior 
attraction  which  it  has  for  the  ablest  and  most  ambitious 

A  senator  has  more  power  than  a  member  of  the  House, 
more  dignity,  a  longer  term  of  service,  a  more  independent 
position."  Hence  every  Eederal  politician  aims  at  a  senator- 
ship,  and  looks  on  the  place  of  representative  as  a  stepping- 
stone  to  what  may  fairly  be  called  an  Upper  House,  because  it 
is  the  House  to  which  representatives  seek  to  mount.  It  is 
no  more  surprising  that  the  average  capacity  of  the  Senate 
should  surpass  that  of  the  House,  than  that  the  average  Cabi¬ 
net  minister  of  Europe  should  be  abler  than  the  average  mem¬ 
ber  of  the  legislature. 

The  chamber  in  which  the  Senate  meets  is  rectangular,  but 
the  part  occupied  by  the  seats  is  semicircular  in  form,  the 
Vice-President  of  the  United  States,  who  acts  as  presiding 
officer,  having  his  chair  on  a  marble  dais,  slightly  raised,  in 
the  centre  of  the  chord,  with  the  senators  all  turned  towards 
him  as  they  sit  in  curving  rows,  each  in  an  arm-chair,  with  a 
desk  in  front  of  it.  The  floor  is  about  as  large  as  the  whole 
superficial  area  of  the  British  House  of  Commons,  but  as  there 
are  great  galleries  on  all  four  sides,  running  back  over  the 
lobbies,  the  upper  part  of  the  chamber  and  its  total  air-space 
much  exceeds  that  of  the  English  house.  One  of  these  gal¬ 
leries  is  appropriated  to  the  President  of  the  United  States, 


ciiai\  xi 


SENATE:  WORKING  AND  INFLUENCE 


89 


the  others  to  ladies,  diplomatic  representatives,  the  press,  and 
the  public.  Behind  the  senatorial  chairs  and  desks  there  is 
an  open  space  into  which  strangers  can  be  brought  by  the 
senatois,  who  sit  and  talk  on  the  sofas  there  placed.  Members 
of  foreign  legislatures  are  allowed  access  to  this  outer  “  floor 
of  the  Senate.”  There  is,  especially  when  the  galleries  are 
empty,  a  slight  echo  in.  the  room,  which  obliges  most  speakers 
to  strain  their  voices.  Two  or  three  pictures  on  the  walls 
somewhat  relieve  the  cold  tone  of  the  chamber,  with  its  mar¬ 
ble  platform  and  sides  unpierced  by  windows,  for  the  light 
enters  through  glass  compartments  in  the  ceiling. 

A  senator  always  addresses  the  Chair  “  Mr.  President,”  and 
refers  to  other  senators  by  their  States,  “The  senator  from 
Ohio,  “  The  senator  from  Tennessee.”  MThen  two  senators  rise 
at  the  same  moment,  the  Chair  calls  on  one,  indicating  him  by 
his  State,  “  The  senator  from  Minnesota  has  the  floor.”  Sena¬ 
tors  of  the  Democratic  party  apparently  always  have  sat  on  the 
right  of  the  chair,  Republican  senators  on  the  left;  but,  as 
already  explained,  the  parties  do  not  face  one  another.  The 
impression  which  the  place  makes  on  a  visitor  is  one  of  busi¬ 
ness-like  gravity,  a  gravity  which  though  plain  is  dignified. 
It  has  the  air  not  so  much  of  a  popular  assembly  as  of  a  diplo¬ 
matic  congress. 

As  might  be  expected  from  the  small  number  of  the  audi¬ 
ence,  as  well  as  from  its  character,  discussions  in  the  Senate 
are  apt  to  be  sensible  and  practical.  Speeches  are  shorter  and 
less  fervid  than  those  made  in  the  House  of  Representatives, 
for  the  larger  an  assembly  the  more  prone  is  it  to  declamation. 
The  least  useful  debates  are  those  on  show-days,  when  a  series 
of  set  discourses  are  delivered  on  some  prominent  question. 
Each  senator  brings  down,  and  fires  off  in  the  air,  a  carefully 
prepared  oration,  which  may  have  little  bearing  on  what  has 
gone  before.  In  fact  the  speeches  are  made  not  to  convince 
the  assembly,  —  no  one  dreams  of  that,  —  but  to  keep  a  man’s 
opinions  before  the  public  and  sustain  his  fame.  The  ques¬ 
tion  at  issue  is  sure  to  have  been  already  settled,  either  in 
a  committee  or  in  a  “  caucus  ”  of  the  party  which  commands 
the  majority,  so  that  these  long  and  sonorous  harangues  are 
mere  rhetorical  thunder  addressed  to  the  nation  outside. 

The  Senate  now  contains  many  men  of  great  wealth.  Some, 


90 


THE  NATIONAL  GOVERNMENT 


PART  I 


an  increasing  number,  are  senators  because  they  are  iich ;  a 
few  are  rich  because  they  are  senators  5  while  in  the  lemaining 
cases  the  same  talents  which  have  won  success  in  law  or  com¬ 
merce  have  brought  their  possessor  to  the  top  in  politics  also. 
The  great  majority  are  or  have  been  lawyers  ;  some  regularly 
practise  before  the  Supreme  Court.  Complaints  are  occasion¬ 
ally  levelled  against  the  aristocratic  tendencies  which  wealth 
is  supposed  to  have  bred,  and  sarcastic  references  are  made  to 
the  sumptuous  residences  which  senators  have  built  on  the 
new  avenues  of  Washington.  Wliile  admitting  that  there  is 
more  sympathy  for  the  capitalist  class  among  these  rich  men 
than  there  would  be  in  a  Senate  of  poor  men,  I  must  add  that 
the  Senate  is  far  from  being  a  class  body  like  the  Upper  Houses 
of  England  or  Prussia  or  Spain  or  Denmark.  It  is  substan¬ 
tially  representative,  by  its  composition  as  well  as  by  legal 
delegation,  of  all  parts  of  American  society  5  it  is  far  too 
dependent,  and  far  too  sensible  that  it  is  dependent,  upon 
public  opinion,  to  dream  of  legislating  in  the  interest  of  the 

rich. 

The  senators,  however,  indulge  some  social  pretensions. 
They  are  the  nearest  approach  to  an  official  aristocracy  that 
has  yet  been  seen  in  America.  They  and  their  wives  are 
allowed  precedence  at  private  entertainments,  as  well  as  on 
public  occasions,  over  members  of  the  House,  and  of  course 
over  private  citizens.  Jefferson  might  turn  in  his  grave  if  he 
knew  of  such  an  attempt  to  introduce  European  distinctions  of 
rank  into  his  democracy ;  yet  as  the  office  is  temporary,  and 
the  rank  vanishes  with  the  office,  these  pretensions  are  harm¬ 
less  ;  it  is  only  the  universal  social  equality  of  the  country 
that  makes  them  noteworthy.  Apart  from  such  petty  advan¬ 
tages,  the  position  of  a  senator,  who  can  count  on  re-election, 
is  the  most  desirable  in  the  political  world  of  America.  It 
gives  as  much  power  and  influence  as  a  man  need  desire.  It 
secures  for  him  the  ear  of  the  public.  It  is  more  permanent 
than  the  presidency  or  a  Cabinet  office,  requires  less  labour, 
involves  less  vexation,  though  still  great  vexation,  by  importu¬ 
nate  office-seekers. 

European  writers  on  America  have  been  too  much  inclined 
to  idealize  the  Senate.  Admiring  its  structure  and  function, 
they  have  assumed  that  the  actors  must  be  worthy  of  their 


CHAP.  XI 


SENATE:  WORKING  AND  INFLUENCE 


91 


parts.  They  have  been  encouraged  in  this  tendency  by  the 
language  of  many  Americans.  As  the  Romans  were  never 
tired  of  repeating  that  the  ambassador  of  Pyrrhus  had  called 
the  Roman  senate  an  assembly  of  kings,  so  Americans  of  re¬ 
finement,  who  are  ashamed  of  the  turbulent  House  of  Repre¬ 
sentatives,  have  been  wont  to  talk  of  the  Senate  as  a  sort  of 
Olympian  dwelling-place  of  statesmen  and  sages.  It  is  nothing 
of  the  kind.  It  is  a  company  of  shrewd  and  vigorous  men  who 
have  fought  their  way  to  the  front  by  the  ordinary  methods  of 
American  politics,  and  on  many  of  whom  the  battle  has  left  its 
stains.  There  are  abundant  opportunities  for  intrigue  in  the 
Senate,  because  its  most  important  business  is  done  in  the 
secrecy  of  committee  rooms  or  of  executive  session ;  and  many 
senators  are  intriguers.  There  are  opportunities  for  misusing 
senatorial  powers.  Scandals  have  sometimes  arisen  from  the 
practice  of  employing,  as  counsel  before  the  Supreme  Court, 
senators  whose  influence  has  contributed  to  the  appointment 
or  confirmation  of  the  judges.1  There  are  opportunities  for 
corruption  and  blackmailing,  of  which  unscrupulous  men  are 
well  known  to  take  advantage.  Such  men  are  fortunately  few ; 
but  considering  how  demoralized  are  the  legislatures  of  a  few 
States,  their  presence  must  be  looked  for ;  and  the  rest  of  the 
Senate,  however  it  may  blush  for  them,  is  obliged  to  work  with 
them  and  to  treat  them  as  equals.  The  contagion  of  political 
vice  is  nowhere  so  swiftly  potent  as  in  legislative  bodies,  be¬ 
cause  you  cannot  taboo  a  man  who  has  got  a  vote.  You  may 
loathe  him  personally,  but  he  is  the  people’s  choice,  and  he 
has  a  right  to  share  in  the  government  of  the  country. 

As  respects  ability,  the  Senate  cannot  be  profitably  com¬ 
pared  with  the  English  House  of  Lords,  because  that  assembly 
consists  of  some  fifteen  eminent  and  as  many  ordinary  men 
attending  regularly,  with  a  multitude  of  undistinguished  per¬ 
sons  who  rarely  appear,  and  take  no  share  in  the  delibera¬ 
tions.  Setting  the  Senate  beside  the  House  of  Commons,  the 
average  natural  capacity  of  its  ninety  members  is  not  above 
that  of  the  ninety  best  men  in  the  English  House.  There  is 

1  In  1886,  a  bill  was  brought  in  forbidding  members  of  either  House  of  Con¬ 
gress  to  appear  in  the  Federal  courts  as  counsel  for  any  railroad  company  or 
other  corporation  which  might,  in  respect  of  its  having  received  land  grants, 
be  affected  by  Federal  legislation. 


92 


THE  NATIONAL  GOVERNMENT 


PART  I 


more  variety  of  talent  in  the  latter,  and  a  greater  breadth  of 
culture.  On  the  other  hand,  the  Senate  excels  in  legal  know¬ 
ledge  as  well  as  in  practical  shrewdness.  The  House  of  Com¬ 
mons  contains  more  men  who  could  give  a  good  address  on  a 
literary  or  historical  subject ;  the  Senate,  together  with  some 
eminent  lawyers,  has  more  who  could  either  deliver  a  rousing 
popular  harangue  or  manage  the  business  of  a  great  trading 
company,  these  being  the  forms  of  capacity  commonest  among 
congressional  politicians. 

The  place  which  the  Senate  holds  in  the  constitutional  sys¬ 
tem  of  America  cannot  be  fully  appreciated  till  the  remaining 
parts  of  that  system  have  been  described.  This  much,  how¬ 
ever,  may  be  claimed  for  it,  that  it  has  been  and  is  still,  though 
less  than  formerly,  a  steadying  and  moderating  power.  One 
cannot  say  in  the  language  of  European  politics  that  it  has 
represented  aristocratic  principles,  or  anti-popular  principles, 
or  even  conservative  principles.  Each  of  the  great  historic 
parties  has  in  turn  commanded  a  majority  in  it,  and  the  dif¬ 
ference  between  their  strength  has  during  the  last  decade  been 
but  slight.  On  none  of  the  great  issues  that  have  divided  the 
nation  has  the  Senate  been,  for  any  long  period,  decidedly  op¬ 
posed  to  the  other  House  of  Congress.  It  showed  no  more 
capacity  than  the  House  for  grappling  with  the  problems  of 
slavery  extension.  It  was  scarcely  less  ready  than  the  House 
to  strain  the  Constitution  by  supporting  Lincoln  in  the  exer¬ 
cise  of  the  so-called  war  powers,  or  subsequently  by  cutting 
down  presidential  authority  in  the  struggle  between  Congress 
and  Andrew  Johnson,  though  it  refused  to  convict  hhn  when 
impeached  by  the  House.  All  the  fluctuations  of  public  opin¬ 
ion  tell  upon  it,  nor  does  it  venture,  any  more  than  the  House, 
to  confront  a  popular  impulse,  because  it  is,  equally  with  the 
House,  subject  to  the  control  of  the  great  parties,  which  seek 
to  use  while  they  obey  the  dominant  sentiment  of  the  hour. 

But  the  fluctuations  of  opinion  tell  on  it  less  energetically 
than  on  the  House  of  Representatives.  They  reach  it  more 
slowly  and  gradually,  owing  to  the  system  which  renews  it  by 
one-third  every  second  year,  so  that  it  sometimes  happens  that 
before  the  tide  has  risen  to  the  top  of  the  flood  in  the  Senate 
it  has  already  begun  to  ebb  in  the  country.  The  Senate  has 
generally  been  a  stouter  bulwark  against  agitation,  not  merely 


CHAP.  XI 


SENATE:  WORKING  AND  INFLUENCE 


93 


because  a  majority  of  the  senators  have  always  four  years  of 
membership  before  them,  within  which  period  public  feel¬ 
ing  may  change,  but  also  because  the  senators  have  been  indi¬ 
vidually  stronger  men  than  the  representatives.  They  have 
been  less  democratic,  not  in  opinion,  but  in  temper,  because 
they  were  more  self-confident,  because  they  had  more  to  lose 
because  experience  has  taught  them  how  fleeting  a  thing  popu¬ 
lar  sentiment  is,  and  how  useful  a  thing  continuity  in  policy 
is.  lhe  Senate  has  therefore  usually  kept  its  head  better  than 
the  House  of  Representatives.  It  has  expressed  more  ade¬ 
quately  the  judgment,  as  contrasted  with  the  emotion,  of  the 
nation.  In  this  sense  it  has  constituted  a  “  check  and  balance  ” 
in  the  Federal  government. 

Of  the  three  great  functions  which  the  Fathers  of  the  Con¬ 
stitution  meant  it  to  perform,  the  first,  that  of  securing  the 
rights  of  the  smaller  States,  is  no  longer  important;  while 
the  second,  that  of  advising  or  controlling  the  executive  in 
appointments  as  well  as  in  treaties,  has  given  rise  to  evils 
almost  commensurate  with  its  benefits.  But  the  third  duty 
has  been  pretty  fairly  discharged,  for  "the  propensity  of  a 
single  and  numerous  assembly  to  yield  to  the  impulse  of 
sudden  and  violent  passions  ”  is  frequently,  though  not  inva¬ 
riably,  restrained. 


CHAPTER  XII 


THE  HOUSE  OF  REPRESENTATIVES 

The  House  of  Representatives,  usually  called  for  shortness 
the  House,  represents  the  nation  on  the  basis  of  population,  as 

the  Senate  represents  the  States. 

But  even  in  the  composition  of  the  House  the  States  play  an 
important  part.  The  Constitution  provides  that  repiesenta- 
tives  and  direct  taxes  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,”  and  under  this 
provision  Congress  allots  so  many  members  of  the  House  to 
each  State  in  proportion  to  its  population  at  the  last  preceding 
decennial  census,  leaving  the  State  to  determine  the  distiicts 
within  its  own  area  for  and  by  which  the  members  shall  be 
chosen.  These  districts  are  now  equal  or  nearly  equal  in  size ; 
but  in  laying  them  out  there  is  ample  scope  for  the  process 
called  “  gerrymandering,”  which  the  dominating  party  in  a 
State  rarely  fails  to  apply  for  its  own  advantage.  Where  a 
State  legislature  has  failed  to  redistribute  the  State  into  con¬ 
gressional  districts,  after  the  State  has  received  an  increase  of 
representatives,  the  additional  member  or  members  are  elected 
by  the  voters  of  the  whole  State  on  a  general  tickuf,  and  are 
called  “  representatives  at  large.”  Recently  one  State  (Maine) 
elected  all  its  representatives  on  this  plan,  while  another 
(Kansas)  elected  three  by  districts  and  four  by  general  ticket. 
Each  district,  of  course,  lies  wholly  within  the  limits  of  one 
State.  When  a  seat  becomes  vacant  the  governor  of  the  State 
issues  a  writ  for  a  new  election,  and  when  a  member  desiies 
to  resign  his  seat  he  does  so  by  letter  to  the  governor. 

The  original  House  which  met  in  1789  contained  only  sixty- 
five  members,  the  idea  being  that  there  should  be  one  member 
for  every  30,000  persons.  As  population  grew  and  new  States 

i  Constitution,  Art.  i.  §  2,  par.  3;  cf.  Amendment  xiv.  §  2. 

94 


CHAP.  XII 


THE  HOUSE  OF  REPRESENTATIVES 


95 


were  added,  the  number  of  members  was  increased.  Originally 
Congress  fixed  the  ratio  of  members  to  population,  and  the 
House  accordingly  grew;  but  latterly,  fearing  a  too  rapid 
increase,  it  has  fixed  the  number  of  members  with  no  regard 
for  any  precise  ratio  of  members  to  population.  Till  the  elec¬ 
tion  of  1892  the  number  was  332 :  it  is  now,  under  a  statute  of 
1891,  357,  being,  according  to  the  census  of  1890,  one  member 
to  about  174,000  souls.  Seven  States,  Delaware,  Idaho,  Mon¬ 
tana,  Nevada,  N.  Dakota,  Wyoming,  and  Utah  have  under  this 
Act  one  representative  each ;  eight  have  two  each ;  while  New 
1  ork  has  thirty-four,  and  Pennsylvania  thirty.  Besides  these 
full  members  there  are  also  Territorial  delegates,  one  from  each 
of  the  Territories.  These  delegates  sit  and  speak,  but  have  no 
right  to  vote,  being  unrecognized  by  the  Constitution.  They 
aie,  in  fact,  merely  persons  whom  the  House  under  a  statute 
admits  to  its  floor  and  permits  to  address  it.  The  quorum  of 
tlie^House,  as  of  the  Senate,  is  a  majority  of  the  whole  number. 

ihe  electoral  franchise  on  which  the  House  is  elected  is  for 
each  State  the  same  as  that  by  which  the  members  of  the  more 
numerous  branch  of  the  State  legislature  are  chosen.  Origi¬ 
nally  franchises  varied  much  in  different  States  ;  and  this  was 
a  principal  reason  why  the  Convention  of  1787  left  the  matter 
to  the  States  to  settle :  now  what  is  practically  manhood  suf¬ 
frage  prevails  everywhere.  A  State,  however,  has  a  right  of 
limiting  the  suffrage  as  it  pleases,  and  many  States  do  exclude 
persons  convicted  of  crime,  paupers,  illiterates,  etc.  By  the 
fifteenth  amendment  to  the  Constitution  (passed  in  1870)  “  the 
right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  any  State  on  account  of  race,  colour 
or  previous  condition  of  servitude,”  while  by  the  fourteenth 
amendment  (passed  in  1868)  “  the  basis  of  representation  in 
any  State  is  reduced  in  respect  of  any  male  citizens  excluded 
from  the  suffrage,  save  for  participation  in  rebellion  or  other 
crimes.”  Each  State  has  therefore  a  strong  motive  for  keeping 
its  suffrage  wide,  but  the  fact  remains  that  the  franchise  by  which 
the  Federal  legislature  is  chosen  may  differ  vastly,  and  does  in 
some  small  points  actually  differ  in  different  parts  of  the  Union.1 


1  ?hode  Mand  retained  till  1888  a  small  property  qualification  for  electors, 
a  id  m  some  States  payment  of  a  poll-tax  is  made  a  condition  to  the  exercise 
ol  electoral  rights. 


9(3 


THE  NATIONAL  GOVERNMENT 


PART  I 


Members  are  elected  for  two  years  and  the  electron  always 
takes  place  in  the  even  years,  1892,  1894,  and  so  for  • 
the  election  of  every  second  Congress  coincides  with  that  o  s 
President :  and  admirers  of  the  Constitution  find  m  this  ar¬ 
rangement  another  of  their  favourite  “  checks,  beo^se  whi 
it  gives  the  incoming  President  a  Congress  presumably,  though 
by  no  means  necessarily,  of  the  same  political  complexion  a 
his  own,  it  enables  the  people  within  two  yeais  to  expi 
approval  or  disapproval  of  his  conduct  by  sending  up  another 
House  of  Representatives  which  may  support  or  oppose 
policy  he  has  followed.  The  House  does  not  m  the  regular 
course  of  things  meet  until  a  year  has  elapsed  from  the  time 
when  it  has  been  elected,  though  the  President  may  convoke 
it  sooner,  ie.  a  House  elected  in  November  1892  will  not  meet 
till  December  1893,  unless  the  President  summons  it  in  e 
traordinary  session”  some  time  after  March  •  >  ^ 
previous  House  expires.  This  summons  has  bee  issued  ten 
times  only  since  1789 ;  and  has  so  often  brought  ill  luck  to  the 
summoning  President  that  a  sort  of  superstition  against  it  has 

n°The1  question  is  often  mooted  whether  a  new  Congress  ought 
not  by  law  to  meet  within  six  months  after  its  election,  for 
there  are  inconveniences  in  keeping  an  elected  House  unoiga  - 
ized  and  Speakerless  for  a  twelvemonth.  But  the  country _  s 
not  so  fond  of  Congress  as  to  desire  more  of  it.  It  is  a  sing  - 
lar  result  of  the  present  arrangement  that  the  old  Hoi 
tinues  to  sit  for  nearly  four  months  after  the  members  of  the 
new  House  have  been  elected,  and  that  a  measure  may  still  be 
pressed  in  the  expiring  Congress,  against  which  the  cou  y 
has  virtually  pronounced  at  the  general  elections  already  lie 
for  its  successor.  In  the  fifty-first  Congress  the  House  voted 
more  than  500  millions  of  dollars  in  its  appropriation  bil  s 
after  a  new  Congress  had  been  elected,  and  when  therefore 
had  in  strictness  no  longer  any  constituents. 

The  expense  of  an  election  varies  greatly  from  distnct 
district.  Sometimes,  especially  in  great  cities  where  i  egi  i- 
mate  expenditure  is  more  frequent  and  less  detectable  than 
rural  districts,  it  rises  to  a  sum  of  $10,000  or  more:  sometimes 
it  is  trifling.  No  estimate  of  the  average  can  be  formed, 
because  no  returns  of  congressional  election  expenses  are 


CHAP.  XII 


THE  HOUSE  OF  REPRESENTATIVES 


97 


required  by  law;  but  as  a  rule  a  seat  costs  less  than  one  for 
a  county  division  does  in  England.  A  candidate,  unless  very 
wealthy,  is  not  expected  to  pay  the  whole  expense  out  of  his 
own  pocket,  but  is  aided  often  by  the  local  contributions  of 
his  friends,  sometimes  by  a  subvention  from  the  election  funds 
of  the  party  in  the  State.  All  the  official  expenses,  such  as 
tor  clerks,  polling  booths,  etc.,  are  paid  by  the  public  A1 
though  bribery  is  not  rare,  comparatively  few  elections  are 
impeached,  for  the  difficulty  of  proof  is  increased  by  the  cir¬ 
cumstance  that  the  House,  which  is  the  investigating  and  de¬ 
ciding  authority,  does  not  meet  till  a  year  after  the  election. 
As  a  member  is  elected  for  two  years  only,  and  the  investi¬ 
gation  would  probably  drag  on  during  the  whole  of  the  first 
session,  it  is  scarcely  worth  while  to  dispute  the  return  for 
the  sake  of  turning  him  out  for  the  second  session.1  In  some 
States,  drinking  places  are  closed  on  the  election  day. 

Among  the  members  of  the  House  there  are  few  young  men 
and  still  fewer  old  men.  The  immense  majority  are  between 
forty  and  sixty.  Lawyers  abound.  An  analysis  of  the  House 
m  the  fiftieth  Congress  showed  that  two  hundred  and  three 
members,  or  nearly  two-thirds  of  the  whole  number,  had  been 
trained  or  had  practised  as  lawyers,  while  in  the  fifty-second 
the  number  was  two  hundred.  Of  course  many  of  these  had 
practically  dropped  law  as  a  business,  and  given  themselves 
wholly  to  politics.  Next  in  number  come  the  men  engaged  in 
manufactures  or  commerce,  in  agriculture,  or  banking,  or  jour¬ 
nalism,  but  no  one  of  these  occupations  counted  as  many  as 
forty  members.2  Ministers  of  religion  are  very  rare;  there 
were,  however,  two  in  the  fifty-second  Congress.  No  military 
01  naval  officer,  and  no  person  in  the  civil  service  of  the  United 
States,  can  sit.  Scarcely  any  of  the  great  railway  men  go  into 
Congress,  a  fact  of  much  significance  when  one  considers  that 
they  are  really  the  most  powerful  people  in  the  country ;  and 


1  It  has  been  recently  proposed  to  transfer  to  a  judicial  tribunal  the  trial  of 
election  cases,  which  are  now  usually  decided  on  party  lines. 

2  In  the  fifty-second  Congress  the  number  of  persons  stating  themselves  to 
be  engaged  in  commerce  was  49,  in  agriculture  39.  In  the  forty-eighth  Con¬ 
gress  there  were  205  lawyers.  I  take  these  numbers  from  the  Congressional 
Directory ,  which  I  have  carefully  analyzed,  but  as  some  members  do  not  state 
their  occupations,  the  analysis  is  not  quite  complete,  and  there  are  probablv 
more  lawyers  than  the  number  I  have  given. 


H 


98 


THE  NATIONAL  GOVERNMENT 


PART  I 


of  the  numerous  lawyer  members  very  few  are  leaders  of  the 
bar  in  their  respective  States.  The  reason  is  the  same  in  both 
cases.  Residence  in  Washington  makes  practice  at  the  bar  o 
anv  of  the  great  cities  impossible,  and  men  in  lucrative  practice 
would  not  generally  sacrifice  their  profession  m  order  to  sit  in 
the  House,  while  railway  managers  or  financiers  are  too  much 
engrossed  by  their  business  to  be  able  to  undertake  the  duties 
ofBa  member.  The  absence  of  railway  men  by  no  means 
implies  the  absence  of  railway  influence,  for  it  is  as  easy  for 
a  company  to  influence  legislation  from  without  Congress  as 

from  witliin. 

Most  members  have  received  their  early  education  m  1 
common  schools,  but  about  one-half  of  the  whole  number  have 
also  graduated  in  a  university  or  college.  A  good  many,  but 
apparently  not  the  majority,  have  served  m  the  legislature  of 
their  own  State.  Comparatively  few  are  wealthy,  and  few  are 
very  poor,  while  scarcely  any  were  at  the  time  of  their  election 
workingmen.  Of  course  no  one  could  be  a  workingman  while 
he  sits,  for  he  would  have  no  time  to  spare  for  Ins  trade, 
and  the  salary  would  more  than  meet  his  wants.  Not  ling 
prevents  an  artisan  from  being  returned  to  Congress,  but  there 
seems  little  disposition  among  the  working  classes  to  send  one 


of  themselves.  , 

A  member  of  the  House  enjoys  the  title  of  Honourable, 

which  is  given  to  him  not  merely  within  the  House  (as  in 
England),  but  in  the  world  at  large,  as  for  instance  m  the 
addresses  of  his  letters.  As  he  shares  it  with  members  of 
State  senates,  all  the  higher  officials,  both  Federal  and  State, 
and  judges,  the  distinction  is  not  deemed  a  high  one. 

The  House  has  no  share  in  the  executive  functions  of  the 
Senate,  nothing  to  do  with  confirming  appointments  or  approv¬ 
ing  treaties.  On  the  other  hand,  it  has  the  exclusive  right  o± 
initiating  revenue  bills  and  of  impeaching  officials,  features 
borrowed,  through  the  State  Constitutions,  from  the  English 
House  of  Commons,  and  of  choosing  a  President  m  case  there 
should  be  no  absolute  majority  of  presidential  electors  for  any 
one  candidate.  This  very  important  power  it  exercised  m 

1801  and  1825. 

Setting  extraordinary  sessions  aside,  every  Congress  has 
two  sessions,  distinguished  as  the  First  or  Long  and  the  Second 


CHAP.  XII 


THE  HOUSE  OF  REPRESENTATIVES 


99 


or  Short.  The  long  session  begins  in  the  fall  of  the  year  after 
the  election  of  a  Congress,  and  continues,  with  a  recess  at 
Christmas,  till  the  July  or  August  following.  The  short 
session  begins  in  the  December  after  the  July  adjournment, 
and  lasts  till  the  4th  of  March  following.  The  whole  working 
life  of  a  House  is  thus  from  ten  to  twelve  months.  Bills  do 
not,  as  in  the  English  Parliament,  expire  at  the  end  of  each 
session ;  they  run  on  from  the  long  session  to  the  short  one. 
All  however  that  have  not  been  passed  when  the  fatal  4th  of 
March  arrives  perish  forthwith,  for  the  session  being  fixed  by 
statute  cannot  be  extended  at  pleasure.1  There  is  conse¬ 
quently  a  terrible  scramble  to  get  business  pushed  through  in 
the  last  week  or  two  of  a  Congress. 

The  House  usually  meets  at  noon,  and  sits  till  four  or  six 
o  clock,  though  towards  the  close  of  a  session  these  hours 
are  lengthened.  Occasionally,  when  obstruction  occurs,  or 
when  at  the  very  end  of  a  session  messages  are  going  back¬ 
wards  and  forwards  between  the  House,  the  Senate,  and  the 
President,  it  sits  all  night  long. 

An  oath  or  affirmation  of  fidelity  to  the  Constitution  of  the 
United  States  is  (as  prescribed  by  the  Constitution)  taken  by 
all  members ; 2  also  by  the  clerk,  the  sergeant-at-arms,  the  door¬ 
keeper,  and  postmaster. 

The  sergeant-at-arms  is  the  treasurer  of  the  House,  and  pays 
to  each  member  his  salary  and  mileage  (travelling  expenses). 
He  has  the  custody  of  the  mace,  and  the  duty  of  keeping  order, 
which  in  extreme  cases  he  performs  by  carrying  the  mace  into 
a  throng  of  disorderly  members.  This  symbol  of  authority, 
which  (as  in  the  House  of  Commons)  is  moved  from  its  place 


1  Senate  bills  also  expire  at  the  end  of  a  Congress. 

A  proposal  was  recently  made,  but  has  not  yet  been  adopted,  to  extend  the 
session  till  April  and  have  the  President  inaugurated  then. 

2  The  oath  is  administered  by  the  Speaker,  and  in  the  form  following:  “  I 
do  solemnly  swear  (or  affirm)  that  I  will  support  the  Constitution  of  the 
United  States  against  all  enemies,  foreign  and  domestic ;  that  I  will  bear  true 
faith  and  allegiance  to  the  same ;  that  I  take  this  obligation  freely  without 
any  mental  reservation  or  purpose  of  evasion,  and  that  I  will  well  and  faith¬ 
fully  discharge  the  duties  of  the  office  on  which  I  am  about  to  enter,  so  help 
me  God.”  “  Allegiance  ”  to  a  legal  instrument  would  have  seemed  an  odd 
expression  to  those  ages  in  which  the  notion  of  allegiance  arose ;  yet  it  fairly 
conveys  the  idea  that  obedience  is  due  to  the  will  of  the  people,  which  has 
taken  tangible  and  permanent  shape  in  the  document  they  have  enacted. 


100 


THE  NATIONAL  GOVERNMENT 


PART  i 


when  the  House  goes  into  committee,  consists  of  the  Roman 
fasces,  in  ebony,  bound  with  silver  bands  m  the  middle  and  at 
the  ends,  each  rod  ending  in  a  spear  head,  at  the  other  end  a 
globe  of  silver,  and  on  the  globe  a  silver  eagle  ready  for  flight. 
English  precedent  suggests  the  mace,  but  as  it  could  not  be 
surmounted  by  a  crown,  Rome  has  prescribed  its  design. 

The  proceedings  each  day  begin  with  prayers,  which  are 
conducted  by  a  chaplain  who  is  appointed  by  the  House,  and 
who  may,  of  course,  be  selected  from  any  religious  denomina¬ 
tion.  Lots  are  drawn  for  seats  at  the  beginning  of  the  session, 
each  member  selecting  the  place  he  pleases  according  as  his 
turn  arrives.  Although  the  Democrats  are  to  the  Speaker  s 
right  hand,  members  cannot,  owing  to  the  arrangement  ot  the 
chairs,  sit  in  masses  palpably  divided  according  to  party,  a 
circumstance  which  deprives  invective  of  much  of  its  dramatic 
effect.  One  cannot,  as  in  England,  point  the  finger  of  scorn 
at  “hon.  gentlemen  opposite.”  Every  member  is  required  to 

remain  uncovered  in  the  House.  ,  •, 

A  member  addresses  the  Speaker  and  the  Speaker  only,  and 
refers  to  another  member  not  by  name  but  as  the  “  gentleman 
from  Pennsylvania,”  or,  as  the  case  may  be,  without  any  par¬ 
ticular  indication  of  the  district  which  the  person  referred  to 
represents.  As  there  are  twenty-eight  gentlemen  from  Penn¬ 
sylvania,  and  the  descriptives  used  in  the  English  House  o 
Commons  (learned,  gallant,  right  honourable)  are  not  m  use 
facilities  for  distinguishing  the  member  intended  are  not  per¬ 
fect.  A  member  usually  speaks  from  his  seat  but  may  speak 
from  the  clerk’s  desk  or  from  a  spot  close  to  the  Speakei 
chair.  A  rule  (often  disregarded)  forbids  any  one  to  pass  be¬ 
tween  the  Speaker  and  the  member  speaking,  a  curious  bit  ot 

adherence  to  English  usage.  ,  A  17oQ\ 

Divisions  were  originally  (rule  of  17tli  April  1789)  taken 
by  going  to  the  right  and  left  of  the  chair,  according  to  the  old 
nractice  of  the  English  House  of  Commons.  This  having  been 
Lnd  inconvenient,  a  resolution  of  9th  June  1789  established 
the  present  practice,  whereby  members  rise  in  throats  and 
are  counted  in  the  first  instance  by  the  Speaker,  but  if  he 
doubt,  or  if  a  count  be  required  by  one-fifth  of  those  presen 
(which  cannot  be  less  than  one-tenth  of  the  whole  House), 
then  by  two  tellers  named  by  the  Speaker,  between  whom,  as 


CHAP.  XII 


THE  HOUSE  OF  REPRESENTATIVES 


101 


they  stand  in  the  middle  gangway,  members  pass.  When  a 
call  of  yeas  and  nays  is  so  demanded,  the  clerk  calls  the  full 
roll  of  the  House,  and  each  member  answers  aye  or  no  to  his 
name,  or  says  ii  no  vote.”  AVhen  the  whole  roll  has  been  called, 
it  is  called  over  a  second  time  to  let  those  vote  who  have  not 
voted  in  the  first  call.  Members  may  now  change  their  votes. 
Those  who  have  entered  the  House  after  their  names  were 
passed  on  the  second  call  cannot  vote,  but  often  take  the 
opportunity  of  rising  to  say  that  they  would,  if  then  present 
in  the  House,  have  voted  for  (or  against)  the  motion.  All 
this  is  set  forth  in  the  Congressional  Record,  which  also  con¬ 
tains  a  list  of  the  members  not  voting  and  of  the  pairs. 

A  process  which  consumes  so  much  time,  for  it  sometimes 
takes  an  hour  to  call  through  the  entire  list  of  names,  is  an 
obvious  and  effective  engine  of  obstruction.  It  is  frequently 
so  used,  for  it  can  be  demanded  not  only  on  questions  of  sub¬ 
stance,  but  on  motions  to  adjourn.  This  is  a  rule  which  the 
House  cannot  alter,  for  it  rests  on  an  express  provision  of  the 
Constitution,  Art.  i.  §  5. 

No  one  may  speak  more  than  once  to  the  same  question, 
unless  he  be  the  mover  of  the  motion  pending,  in  which  case 
he  is  permitted  to  reply  after  every  member  choosing  to  speak 
has  spoken.  This  rule  is  however  frequently  broken. 

Speeches  are  limited  to  one  hour,  subject  to  a  power  to  ex¬ 
tend  this  time  by  unanimous  consent,  and  may,  in  committee 
of  the  whole  House,  be  limited  to  five  minutes.  So  far  as  I 
could  learn,  this  hour  rule  works  very  well,  and  does  not  tend 
to  bring  speeches  up  to  that  length  as  a  regular  thing.  A 
member  is  at  liberty  to  give  part  of  his  time  to  other  members, 
and  this  is  in  practice  constantly  done.  The  member  speaking 
will  say :  “  I  yield  the  floor  to  the  gentleman  from  Ohio  for 
five  minutes,”  and  so  on.  Thus  a  member  who  has  once  se¬ 
cured  the  floor  has  a  large  control  of  the  debate. 

The  great  remedy  against  prolix  or  obstructive  debate  is  the 
so-called  previous  question,  which  is  moved  in  the  form,  “  Shall 
the  main  question  be  now  put  ?  ”  and  when  ordered  closes 
forthwith  all  debate,  and  brings  the  House  to  a  direct  vote  on 
that  main  question.  On  the  motion  for  the  putting  of  the 
main  question  no  debate  is  allowed ;  but  it  does  not  destroy 
the  right  of  the  member  “  reporting  the  measure  under  con- 


102 


THE  NATIONAL  GOVERNMENT 


PART  I 


sideration  ”  from  a  committee,  to  wind  np  the  discussion  by 
his  reply.  This  closure  of  the  debate  may  be  moved  by  any 
member  without  the  need  of  leave  from  the  Speaker,  and  re¬ 
quires  only  a  bare  majority  of  those  present.  When  directed 
by  the  House  to  be  applied  in  committee,  for  it  cannot  be 
moved  after  the  House  has  gone  into  committee,  it  has  the 
effect  of  securing  five  minutes  to  the  mover  of  any  amendment, 
and  five  minutes  to  the  member  who  first  u  obtains  the  floor 
(gets  the  chance  of  speaking)  in  opposition  to  it,  permitting 
no  one  else  to  speak.  A  member  in  proposing  a  resolution  or 
motion  usually  asks  at  the  same  time  for  the  previous  question 
upon  it,  so  as  to  prevent  it  from  being  talked  out.  Closure  by 
previous  question,  first  established  in  1811,  is  in  daily  use,  and 
is  considered  so  essential  to  the  progress  of  business  that  I 
never  found  any  member  or  official  willing  to  dispense  with  it. 

Notwithstanding  this  powerful  engine  for  expediting  busi¬ 
ness,  obstruction,  or,  as  it  is  called  in  America,  filibusteiing,  is 
by  no  means  unknown.  It  is  usually  practised  by  making 
repeated  motions  for  the  adjournment  of  a  debate,  or  for 
« taking  a  recess  ”  (suspending  the  sitting),  or  for  calling  the 
yeas  and  nays.  Between  one  such  motion  and  another  some 
business  must  intervene,  but  as  the  making  of  a  speech  is 
“  business,”  there  is  no  difficulty  in  complying  with  this  require¬ 
ment.  No  speaking  is  permitted  on  these  obstructive  motions, 
yet  by  them  time  may  be  wasted  for  many  continuous  hours, 
and  if  the  obstructing  minority  is  a  strong  one,  it  generally 
succeeds,  if  not  in  defeating  a  measure,  yet  in  extorting  a  com¬ 
promise.  It  must  be  remembered  that  owing  to  the  provision 
of  the  Constitution  above  mentioned,  the  House  is  in  this 
matter  not  sovereign  even  over  its  own  procedure.  That  rules 
are  not  adopted,  as  they  might  be,  which  would  go  further  to 
extinguish  filibustering,  is  due  partly  to  this  provision,  paitly 
to  the  notion  that  it  is  prudent  to  leave  some  means  open  by 
which  a  minority  can  make  itself  disagreeable,  and  to  the  belief 
that  adequate  checks  exist  on  any  gross  abuse  of  such  means.1 

These  checks  are  two.  One  is  the  fact  that  filibustering  usu¬ 
ally  fails  unless  conducted  by  nearly  the  whole  of  the  party 

1  In  1890  a  rule  was  passed  empowering  the  Speaker  to  refuse  to  put  any 
motion  which  he  might  deem  to  he  of  dilatory  nature,  but  the  fifty-second 
Congress  gave  this  power  only  for  one  class  of  cases. 


CHAP.  XII 


THE  HOUSE  OF  REPRESENTATIVES 


103 


which  happens  to  be  in  a  minority,  and  that  so  large  a  section  of 
the  House  will  not  be  at  the  trouble  of  joining  in  it  unless  upon 
some  really  serious  question.  Some  few  years  ago,  seventeen 
or  eighteen  members  tried  to  obstruct  systematically  a  measure 
they  objected  to,  but  their  number  proved  insufficient,  and  the 
attempt  failed.  But  at  an  earlier  date,  during  the  Recon¬ 
struction  troubles  which  followed  the  war,  the  opposition  of 
the  solid  Democratic  party,  then  in  a  minority,  succeeded  in 
defeating  a  bill  for  placing  five  of  the  Southern  States  under 
military  government.  The  other  check  is  found  in  the  fear  of 
popular  disapproval.  If  the  nation  sees  public  business  stopped 
and  necessary  legislation  delayed  by  factious  obstruction,  it 
will  visit  its  displeasure  both  upon  the  filibustering  leaders 
individually,  and  on  the  whole  of  the  party  compromised. 
However  hot  party  spirit  may  be,  there  is  always  a  margin  of 
moderate  men  in  both  parties  whom  the  unjustifiable  use  of 
legally  permissible  modes  of  opposition  will  alienate.  Since 
such  men  can  make  themselves  felt  at  the  polls  when  the 
next  election  arrives,  respect  for  their  opinion  cools  the 
passion  of  congressional  politicians.  Thus  the  general  feeling 
is  that  as  the  power  of  filibustering  is  in  extreme  cases  a 
safeguard  against  abuses  of  the  system  of  closure  by  “  previous 
question/’  so  the  good  sense  of  the  community  is  in  its  turn 
a  safeguard  against  abuses  of  the  opportunities  which  the 
rules  still  leave  open. 

One  subject  alone,  the  subject  of  revenue,  that  is  to  say, 
taxation  and  appropriation,  receives  genuine  discussion  by  the 
House  at  large.  And  although  the  power  of  limiting  debate 
is  often  applied  to  expedite  such  business,  it  is  seldom  applied 
till  opportunity  has  been  given  for  the  expression  of  all  rele¬ 
vant  views. 

The  number  of  bills  brought  into  the  House  every  year  is 
very  large,  averaging  over  10,000.  In  the  thirty-seventh  Con¬ 
gress  (1861-63)  the  total  number  of  bills  introduced  was  1026, 
viz. :  —  613  House  bills,  and  433  Senate  bills.  In  the  forty- 
sixth  it  had  risen  to  9481,  of  which  7257  were  House  bills, 
2224  Senate  bills,  showing  that  the  increase  has  been  much 
larger  in  the  House  than  in  the  Senate.  In  the  fifty-first  Con¬ 
gress  (1889-91)  the  number  rose  still  further,  viz.  to  19,646 
(including  joint  resolutions),  of  which  14,328  were  introduced 


104 


THE  NATIONAL  GOVERNMENT 


PART  I 


in  the  House,  5318  in  the  Senate.1  I  need  scarcely  say  that 
the  proportion  of  bills  that  pass  to  bills  that  fail  is  a  very  small 
one,  not  one-thirtieth.  As  in  England  so  even  more  in  Amer¬ 
ica,  bills  are  lost  less  by  direct  rejection  than  by  failing  to 
reach  their  third  reading,  a  mode  of  extinction  which  the  good¬ 
nature  of  the  House,  or  the  unwillingness  of  its  members  to 
administer  snubs  to  one  another,  would  prefer  to  direct  rejec¬ 
tion,  even  were  not  the  want  of  time  a  sufficient  excuse  to  the 
committees  for  failing  to  report  them.  One  is  told  in  Wash¬ 
ington  that  few  bills  are  brought  in  with  a  view  to  being 
passed.  They  are  presented  in  order  to  gratify  some  particu¬ 
lar  persons  or  places,  and  it  is  well"  understood  in  the  House 
that  they  must  not  be  taken  seriously.  Sometimes  a  less  par¬ 
donable  motive  exists.  The  great  commercial  companies,  and 
especially  the  railroad  companies,  are  often  through  their  land 
grants  and  otherwise  brought  into  relations  with  the  Federal 
government.  Bills  are  presented  in  Congress  which  purport 
to  withdraw  some  of  the  privileges  of  these  companies,  or  to 
establish  or  favour  rival  enterprises,  but  whose  real  object  is  to 
levy  blackmail  on  these  wealthy  bodies,  since  it  is  often  cheaper 
for  a  company  to  buy  off  its  enemy  than  to  defeat  him  either 
by  the  illegitimate  influence  of  the  lobby,  or  by  the  strength 
of  its  case  in  open  combat.  Several  great  corporations  have 
thus  to  maintain  a  permanent  staff  at  Washington  for  the  sake 
of  resisting  legislative  attacks  upon  them,  some  merely  extor¬ 
tionate,  some  intended  to  win  local  popularity. 

The  title  and  attributions  of  the  Speaker  of  the  House  are 
taken  from  his  famous  English  original.  But  the  character  of 
the  office  has  greatly  altered  from  that  original.  The  note  of 
the  Speaker  of  the  British  House  of  Commons  is  his  impar¬ 
tiality.  He  has  indeed  been  chosen  by  a  party,  because  a  ma¬ 
jority  means  in  England  a  party.  But  on  his  way  from  his 
place  on  the  benches  to  the  Chair  he  is  expected  to  shake  off 
and  leave  behind  all  party  ties  and  sympathies.  Once  invested 
with  the  wig  and  gown  of  office  he  has  no  longer  any  political 
opinions,  and  must  administer  exactly  the  same  treatment  to 
his  political  friends  and  to  those  who  have  been  hitherto  his 
opponents,  to  the  oldest  or  most  powerful  minister  and  to  the 

i  Of  these,  2201  passed  both  Houses,  and  2171  were  approved  by  the  Presi¬ 
dent. 


CHAP.  XII 


THE  HOUSE  OF  REPRESENTATIVES 


105 


youngest  or  least  popular  member.  His  duties  are  limited  to 
the  enforcement  of  the  rules  and  generally  to  the  maintenance 
of  order  and  decorum  in  debate,  including  the  selection,  when 
several  members  rise  at  the  same  moment,  of  the  one  who  is 
to  carry  on  the  discussion.  These  are  duties  of  great  impor¬ 
tance,  and  his  position  one  of  great  dignity,  but  neither  the 

t1U^ies  nor  P08^011  imply  political  power.  It  makes  little 
difference  to  any  English  party  in  Parliament  whether  the  occu¬ 
pant  of  the  chair  has  come  from  their  own  or  from  the  hostile 
ranks.  The  Speaker  can  lower  or  raise  the  tone  and  efficiency 
o±  the  House  as  a  whole  by  the  way  he  presides  over  it :  but  a 
custom  as  strong  as  law  forbids  him  to  render  help  to  his  own 
side  even  by  private  advice.  Whatever  information  as  to  par¬ 
liamentary  law  he  may  feel  free  to  give  must  be  equally  at  the 
disposal  of  every  member. 

In  America  the  Speaker  has  immense  political  power,  and  is 
permitted,  nay  expected,  to  use  it  in  the  interests  of  his  party. 
In  calling  upon  members  to  speak  he  prefers  those  of  his  own 
side.  He  decides  in  their  favour  such  points  of  order  as  are 
not  distinctly  covered  by  the  rules.  His  authority  over  the 
arrangement  of  business  is  so  large  that  he  can  frequently  ad¬ 
vance  or  postpone  particular  bills  or  motions  in  a  way  which 
determines  their  fate.  A  recent  and  much-respected  Speaker 
went  the  length  of  intimating  that  he  would  not  allow  a  certain 
bill  to  which  he  strongly  objected,  to  be  so  much  as  presented 
to  the  House ;  and  this  he  could  do  by  refusing  to  recognize 
the  member  desiring  to  present  it. 

Although  the  Speaker  seldom  delivers  a  speech  in  the 
House,  he  may  and  does  advise  the  other  leaders  of  his  party 
privately;  and  when  they  “go  into  caucus”  (i.e.  hold  a  party 
meeting  to  determine  their  action  on  some  pending  question) 
he  is  present  and  gives  counsel.  He  is  usually  the  most  emi¬ 
nent  member  of  the  party  who  has  a  seat  in  the  House,  and  is 
really,  so  far  as  the  confidential  direction  of  its'  policy  goes, 
almost  its  leader.  His  most  important  privilege  is,  however' 
the  nomination  of  the  numerous  standing  committees  already 
referred  to.  In  the  first  Congress  (April  1790)  the  House 
tried  the  plan  of  appointing  its  committees  by  ballot ;  but  this 
wor  ed  so  ill  that  in  January  1790  the  following  rule  was 
passed :  —  “  All  committees  shall  be  appointed  by  the  Speaker, 


106 


the  national  government 


PART  I 


unless  otherwise  specially  directed  by  the  House.”  This  rule 
has  been  re-adopted  by  each  successive  Congress  since  then. 
Not  only  does  he,  at  the  beginning  of  each  Congress,  select 
all  the  members  of  each  of  these  committees,  he  even  chooses 
the  chairman  of  each,  and  thereby  vests  the  direction  of  its 
business  in  hands  approved  by  himself.  The  chairman  is  o 
course  always  selected  from  the  party  which  commands  the 
House,  and  the  committee  is  so  composed  as  to  give  that  paity 

a  “fncelegislation  and  so  much  of  the  control  of  current  ad¬ 
ministration  as  the  House  has  been  able  to  bring  within  its 
grasp,  belong  to  these  committees,  their  composition  practically 
determines  the  action  of  the  House  on  all  questions  of  moment, 
and  as  the  chairmanships  of  the  more  important  committees 
are  the  posts  of  most  influence,  the  disposal  of  them  is  a  ie- 
mendous  piece  of  patronage  by  which  a  Speaker  can  attract, 
support  to  himself  and  his  own  section  of  the  party,  reward 
his  friends,  give  politicians  the  opportunity  of  rising  to  dis¬ 
tinction  or  practically  extinguish  their  congressional  career. 
The  Speaker  is,  of  course,  far  from  free  m  disposing  of  these  - 
places.  He  has  been  obliged  to  secure  his  own  election  to  the 
chair  by  promises  to  leading  members  and  their  friends ,  and 
while  redeeming  such  promises,  he  must  also  regard  the  wis  e 
of  important  groups  of  men  or  types  of  opinion,  must  comp  1- 
ment  particular  States  by  giving  a  place  on  good  committees 
to  their  prominent  representatives,  must  avoid  nominations 
which  could  alarm  particular  interests.  These  conditions  sur¬ 
round  the  exercise  of  his  power  with  trouble  and  anxiety. 
Yet  after  all  it  is  power,  power  which  in  the  hands  of  a  capable 
and  ambitious  man  becomes  so  far-reaching  that  it  is  no  exag¬ 
geration  to  call  him  the  second,  if  not  the  first  political  figm 
in  the  United  States,  with  an  influence  upon  the  fortunes  o 
men  and  the  course  of  domestic  events  superior,  m  ordinary 
times,  to  the  President’s,  although  shorter  m  its  duration  and 

less  patent  to  the  world.1 

1  “  The  appointment  of  the  committees  implies  the  distribution  of  work  to 
every  member  It  means  the  determination  of  the  cast  business  shall  take^ 


ciiAr.  xii  THE  HOUSE  OF  REPRESENTATIVES 


le  choice  of  a  Speaker  is  therefore  a  political  event  of  the 
highest  significance ;  and  the  whole  policy  of  a  Congress  some¬ 
times  turns  upon  whether  the  man  selected  represents  one  or 
another  of  two  divergent  tendencies  in  the  majority.  Follow¬ 
ing  thereon  comes  his  distribution  of  members  among  the  com¬ 
mittees,  a  critical  point  in  the  history  of  a  Congress,  and  one 
which  is  watched  with  keen  interest.  He  devotes  himself  to 
this  function  for  the  fortnight  after  his  installation  with  an 
intensity  equalling  that  of  a  European  prime  minister  con¬ 
structing  a  cabinet.  The  parallel  goes  further,  for  as  the 
chairmanships  of  the  chief  committees  may  be  compared  to 
the  cabinet  offices  of  Europe,  so  the  Speaker  is  himself  a  great 
party  leader  as  well  as  the  president  of  a  deliberative  assembly. 

.  Although  expected  to  serve  his  party  in  all  possible  direc¬ 
tions,  he  must  not  resort  to  all  possible  means.  Both  in  the 
conduct  of  debate  and  in  the  formation  of  committees  a  certain 
measure  of  fairness  to  opponents  is.  required  from  him.  He 
must  not  palpably  wrest  the  rules  of  the  House  to  their  disad¬ 
vantage,  though  he  may  decide  all  doubtful  points  against  them. 
He  must  give  them  a  reasonable  share  of  “the  floor  ”  (i.e.  of 

debate).  He  must  concede  to  them  proper  representation  on 
committees. 

©gaaa  dignity  of  the  sPeaher?s  office  is  high.  He  receives 
JbOOO  a  year,  which  is  a  large  salary  for  America.  In  rank 
he  stands  next  after  the  Vic6-President  and  on  a  level  with 
the  justices  of  the  Supreme  Court.  Washington  society  was 
once  agitated  by  a  claim  of  his  wife  to  take  precedence  over 
the  wives  of  these  judges,  a  claim  so  ominous  in  a  democratic 

country  that  efforts  were  made  to  have  it  adjusted  without  a 
formal  decision. 


characler  of  measures  which  will  be  agitated.  This,  however,  is  far  from  the 
easure  of  the  Speaker  s  power.  All  rules  are  more  or  less  flexible.  The 
current  of  precedents  is  never  consistent  or  uniform.  The  bias  of  the  Speaker 
at  a  critical  moment  will  turn  the  scale.  Mr.  Randall  as  Speaker  determined 
assent  of  the  House  to  the  action  of  the  Electoral  Commission  [of  18771 
Had  he  wished  for  a  revolutionary  attempt  to  prevent  the  announcement  of 
ayes  s  eiectmn  no  one  who  has  had  experience  in  Congress,  at  least,  will 
doubt  that  he  could  have  forced  the  collision.”  — From  an  article  in  the  New 
ork  Nation  of  April  4,  1878,  by  an  experienced  member  of  Congress. 


CHAPTER  XIII 


THE  HOUSE  AT  WORK 


The  room  in  which  the  House  meets  is  in  the  south  wing  of 
the  Capitol,  the  Senate  and  the  Supreme  Court  being  lodged 
in  the  north  wing.  It  is  more  than  thrice  as  large  as  the 
English  House  of  Commons,  with  a  floor  about  equal  in  area 
to  that  of  Westminster  Hall,  139  feet  long  by  93  feet  wide 
and  36  feet  high.  Light  is  admitted  through  the  ceiling. 
There  are  on  all  sides  deep  galleries  running  backwards  over 
the  lobbies,  and  capable  of  holding  two  thousand  five  hundred 
persons.  The  proportions  are  so  good  that  it  is  not  till  you 
observe  how  small  a  man  looks  at  the  farther  end,  and  how 
faint  ordinary  voices  sound,  that  you  realize  its  vast  size. 
The  seats  are  arranged  in  curved  concentric  rows  looking 
towards  the  Speaker,  whose  handsome  marble  chair  is  placed 
on  a  raised  marble  platform  projecting  slightly  forward  into 
the  room,  the  clerks  and  the  mace  below  in  front  of  him,  m 
front  of  the  clerks  the  official  stenographers,  to  the  right  the 
seat  of  the  sergeant-at-arms.  Each  member  has  a  revolving 
arm-chair,  with  a  roomy  desk  in  front  of  it,  where  he  writes 
and  keeps  his  papers.  Behind  these  chairs  runs  a  railing,  and 
behind  the  railing  is  an  open  space  into  which  some  classes  of 
strangers  may  be  brought,  where  sofas  stand  against  the  wall, 
and  where  smoking  is  practised,  even  by  strangers,  though  the 


rules  forbid  it.  . 

When  you  enter,  your  first  impression  is  of  noise  and  tur¬ 
moil,  a  noise  like  that  of  short  sharp  waves  in  a  mountain  lake, 
fretting  under  a  squall  against  a  rocky  shore.  The  raising  and 
dropping  of  desk  lids,  the  scratching  of  pens,  the  clapping  of 
hands  to  call  the  pages,  keen  little  boys  who  race  along  the 
gangways,  the  pattering  of  many  feet,  the  hum  of  talking  on 
the  floor  and  in  the  galleries,  make  up  a  din  over  which  the 


108 


CHAP.  XIII 


THE  HOUSE  AT  WORK 


109 


Speaker  with  the  sharp  taps  of  his  hammer,  or  the  orators 
straining  shrill  throats,  find  it  hard  to  make  themselves 
audible.  Nor  is  it  only  the  noise  that  gives  the  impression  of 
disorder.  Often  three  or  four  members  are  on  their  feet  at 
once,  each  shouting  to  catch  the  Speaker’s  attention.  Others, 
tired  of  sitting  still,  rise  to  stretch  themselves.  Less  favour¬ 
able  conditions  for  oratory  cannot  be  imagined,  and  one  is 
not  surprised  to  be  told  that  debate  was  more  animated  and 
practical  in  the  much  smaller  room  which  the  House  formerly 
occupied. 

Not  only  is  the  present  room  so  big  that  only  a  powerful 
and  well-trained  voice  can  fill  it,  but  the  desks  and  chairs 
make  a  speaker  feel  as  if  he  were  addressing  furniture  rather 
than  men,  while  of  the  members  few  seem  to  listen  to  the 
speeches.  It  is  true  that  they  sit  in  the  House  instead  of 
running  frequently  out  into  the  lobbies,  but  they  are  more 
occupied  in  talking  or  writing,  or  reading  newspapers,  than  in 
attending  to  the  debate.  To  attend  is  not  easy,  for  only  a 
shiill  voice  can  overcome  the  murmurous  roar  5  and  one  some¬ 
times  finds  the  newspapers  in  describing  an  unusually  effective 
speech,  observe  that  “Mr.  So-and-So’s  speech  drew  listeners 
about  him  from  all  parts  of  the  House.”  They  could  not  hear 
him  where  they  sat,  so  they  left  their  places  to  crowd  in  the 
gangways  near  him.  “Speaking  in  the  House,”  says  an 
American  writer,  “is  like  trying  to  address  the  people  in  the 
Broadway  omnibuses  from  the  curbstone  in  front  of  the  Astor 
House.  .  .  .  Men  of  fine  intellect  and  of  good  ordinary  elocu¬ 
tion  have  exclaimed  in  despair  that  in  the  House  of  Repre¬ 
sentatives  the  mere  physical  effort  to  be  heard  uses  up  all  the 
powers,  so  that  intellectual  action  becomes  impossible.  The 
natural  refuge  is  in  written  speeches  or  in  habitual  silence, 
which  one  dreads  more  and  more  to  break.” 

It  is  hard  to  talk  calm  good  sense  at  the  top  of  your  voice, 
hard  to  unfold  a  complicated  measure.  A  speaker’s  vocal 
organs  react  upon  his  manner,  and  his  manner  on  the  sub¬ 
stance  of  his  speech.  It  is  also  hard  to  thunder  at  an  unscru¬ 
pulous  majority  or  a  factious  minority  when  they  do  not  sit 
opposite  to  you,  but  beside  you,  and  perhaps  too  much  occu¬ 
pied  with  their  papers  to  turn  round  and  listen  to  you.  The 
Americans  think  this  an  advantage,  because  it  prevents  scenes 


110 


THE  NATIONAL  GOVERNMENT 


PART  1 


of  disorder.  They  may  be  right;  but  what  order  gains  ora¬ 
tory  loses.  It  is  admitted  that  the  desks  encourage  inatten¬ 
tion  by  enabling  men  to  write  their  letters ;  but  though  nearly 
everybody  agrees  that  they  would  be  better  away,  nobody 
supposes  that  a  proposition  to  remove  them  would  succeed. 
So  too  the  huge  galleries  add  to  the  area  the  voice  has  to  h  ; 
but  the  public  like  them,  and  might  resent  a  removal  to  a 

smaller  room. 

There  is  little  good  speaking.  I  do  not  mean  merely  that 
fine  oratory,  oratory  which  presents  valuable  thoughts  in  elo¬ 
quent  words,  is  rare,  for  it  is  rare  in  all  assemblies.  But  in 
the  House  of  Representatives  a  set  speech  upon  any  subject  of 
importance  tends  to  become  not  an  exposition  or  an  argument 
but  a  piece  of  elaborate  and  high-flown  declamation.  Its  au¬ 
thor  is  often  wise  enough  to  send  direct  to  the  reporters  what 
he  has  written  out,  having  read  aloud  a  small  part  of  it  in  the 
House.  When  it  has  been  printed  in  extenso  in  the  Congres¬ 
sional  Record  (leave  to  get  this  done  being  readily  obtained), 
he  has  copies  struck  off  and  distributes  them  among  his  con¬ 
stituents.  Thus  everybody  is  pleased  and  time  is  saved. 

That  there  is  not  much  good  business  debating,  by  which  I 
mean  a  succession  of  comparatively  short  speeches  addressed 
to  a  practical  question,  and  hammering  it  out  by  the  collision 
of  mind  with  mind,  arises  not  from  any  want  of  ability  among 
the  members,  but  from  the  unfavourable  conditions  under  which 
the  House  acts.  Most  of  the  practical  work  is  done  in  the 
standing  committees,  while  most  of  the  House’s  time  is  con¬ 
sumed  in  pointless  discussions,  where  member  after  member 
delivers  himself  upon  large  questions  not  likely  to  be  brought 
to  a  definite  issue.  Many  of  the  speeches  thus  called  forth 
have  a  value  as  repertories  of  facts,  but  the  debate  as  a  whole 
is  unprofitable  and  languid.  On  the  other  hand  the  five-minute 
debates  which  take  place,  when  the  House  imposes  that  limit 
of  time,  in  committee  of  the  Whole  on  the  consideration  of 
a  bill  reported  from  a  standing  committee,  are  often  lively, 
pointed,  and  effective. 

The  topics  which  excite  most  interest  and  are  best  discussed 
are  those  of  taxation  and  the  appropriation  of  money,  more 
particularly  to  public  works,  the  improvement  of  rivers  and 
harbours,  erection  of  Federal  buildings,  and  so  foith.  This 


CHAP.  XIII 


THE  HOUSE  AT  WORK 


111 


kind  of  business  is  indeed  to  most  of  its  members  the  chief  in¬ 
terest  of  Congress,  the  business  which  evokes  the  finest  skill 
of  a  tactician  and  offers  the  severest  temptations  to  a  frail 
conscience.  As  a  theatre  or  school  either  of  political  eloquence 
or  political  wisdom,  the  House  has  been  inferior  not  only  to 
the  Senate  but  to  most  European  assemblies.  Nor  does  it 
enJ°y  much  consideration  at  home.  Its  debates  are  very 
shortly  reported  in  the  Washington  papers  as  well  as  in  those 
of  Philadelphia  and  New  York.  They  are  not  widely  read 
except  in  very  exciting  times,  and  do  little  to  instruct  or  in¬ 
fluence  public  opinion. 

This  is  of  course  only  one  part  of  a  legislature’s  functions. 
An  assembly  may  despatch  its  business  successfully  and  yet 
shine  with  few  lights  of  genius.  But  the  legislation  on  public 
matters  which  the  House  turns  out  is  scanty  in  quantity  and 
generally  mediocre  in  quality.  What  is  more,  the  House  tends 
to  avoid  all  really  grave  and  pressing  questions,  skirmishing 
round  them,  but  seldom  meeting  them  in  the  face  or  reaching 
a  decision  which  marks  an  advance.  It  is  of  course  said  in 
reply  to  such  criticism,  that  at  this  moment  there  are  few  such 
questions  lying  within  the  competence  of  Congress,  and  that 
representatives  must  not  attempt  to  move  faster  than  their 
constituents.  This  latter  remark  is  eminently  true ;  it  ex¬ 
presses  a  feeling  which  has  gone  so  far  that  Congress  conceives  v 
its  duty  to  be  to  follow  and  not  to  seek  to  lead  public  opinion. 
The  harm  actually  suffered  so  far  is  not  grave.  But  the  Euro¬ 
pean  observer  cannot  escape  the  impression  that  Congress 
might  fail  to  grapple  with  a  serious  public  danger,  and  is  at 
present  hardly  equal  to  the  duty  of  guiding  and  instructing 
the  political  intelligence  of  the  nation. 

Bills  are  frequently  brought  into  the  House  proposing  to 
effect  impossible  objects  by  absurd  means,  which  astonish  a 
visitor,  and  may  even  cause  disquiet  in  other  countries,  while 
few  people  in  America  notice  them,  and  no  one  thinks  it  worth 
while  to  expose  their  emptiness.  The  House  is  particularly 
apt  to  err  in  this  way,  because  having  no  responsibility  in 
foieign  policy,  and  little  sense  of  its  own  dignity,  it  applies  to 
international  affairs  the  habits  of  election  meetings. 

Watching  the  House  at  work,  and  talking  to  the  members 
in  the  lobbies,  an  Englishman  naturally  asks  himself  how  the 


112 


THE  NATIONAL  GOVERNMENT 


PART  I 


intellectual  quality  of  the  body  compares  with  that  of  the 
House  of  Commons.  His  American  friends  have  prepared 
him  to  expect  a  marked  inferiority.  They  are  fond  of  run¬ 
ning  down  congressmen.  A  stranger  who  has  taken  literally 
all  he  hears  is  therefore  surprised  to  find  so  much  character, 
shrewdness,  and  keen  though  limited  intelligence  among  the 
representatives.  Their  average  business  capacity  is  not  below 
that  of  members  of  the  House  of  Commons.  True  it  is  that 
great  lights,  such  as  usually  adorn  the  British  Chamber,  are 
absent :  true  also  that  there  are  fewer  men  who  have  received 
a  high  education  which  has  developed  their  tastes  and  enlarge 
their  horizons.  The  want  of  such  men  seriously  depresses  the 
average.  It  is  raised,  however,  by  the  almost  total  absence  of 
two  classes  hitherto  well  represented  in  the  British  Parlia¬ 
ment,  the  rich,  dull  parvenu,  who  has  bought  himself  into  pub¬ 
lic  life,  and  the  perhaps  equally  unlettered  young  sporting  or 
fashionable  man  who,  neither  knowing  nor  caring  anything 
about  politics,  has  come  in  for  a  county  or  (before  looo)  a 
small  borough,  on  the  strength  of  his  family  estates.  lew 
congressmen  sink  to  so  low  an  intellectual  level  as  these  two 
sets  of  persons,  for  congressmen  have  almost  certainly  made 
their  way  by  energy  and  smartness,  picking  up  a  knowledge  o 

men  and  things.  _  , 

I  have  kept  to  the  last  the  feature  of  the  House  which 

Europeans  find  the  strangest.  # 

It  has  parties,  but  they  are  headless.  There  is  neither 
Government  nor  Opposition;  neither  leaders  nor  whips.  Ao 
person  holding  any  Federal  office  or  receiving  any  Federal 
salary,  can  be  a  member  of  it.  That  the  majority  may  be  and 
often  is  opposed  to  the  President  and  his  Cabinet,  does  not 
strike  Americans  as  odd,  because  they  proceed  on  the  theory 
that  the  legislative  ought  to  be  distinct  from  the  executive 
authority.  Since  no  minister  sits,  there  is  no  official  repre¬ 
sentative  of  the  party  which  for  the  time  being  holds  the  reins 
of  the  executive  government.  Neither  is  there  any  unofficial 
representative.  And  as  there  are  no  persons  whose  opinions 
expressed  in  debate  are  followed,  so  there  are  none  whose  duty 
it  is  to  bring  up  members  to  vote,  to  secure  a  quorum,  to  see 
that  people  know  which  way  the  bulk  of  the  party  is  going. 

1  For  definition  see  p.  151 


CHAP.  XIII 


THE  HOUSE  AT  WORK 


113 


So  far  as  the  majority  has  a  chief,  that  chief  is  the  Speaker 
who  has  been  chosen  by  them  as  their  ablest  and  most  influen¬ 
tial  man ;  but  as  the  Speaker  seldom  joins  in  debate  (though 
he  may  do  so  by  leaving  the  chair,  having  put  some  one  else 
in  it),  the  chairman  of  the  most  important  committee,  that  of 
Ways  and  Means,  enjoys  a  sort  of  eminence,  and  comes  nearer 
than  any  one  else  to  the  position  of  leader  of  the  House.  But 
his  authority  does  not  always  enable  him  to  secure  co-operation 
for  debate  among  the  best  speakers  of  his  party,  putting  up 
now  one  now  another,  after  the  fashion  of  an  English  prime 

minister,  and  thereby  guiding  the  general  course  of  the  dis¬ 
cussion. 

The  minority  do  not  formally  choose  a  leader,  nor  is  there 
usually  any  one  among  them  whose  career  marks  him  out  as 
practically  the  first  man,  but  the  person  whom  they  have  put 
forward  as  their  party  candidate  for  the  Speakership,  giving 
him  what  is  called  “the  complimentary  nomination,”  has  a 

sort  of  vague  claim  to  be  so  regarded.  This  honour  amounts 
to  very  little. 

How  then  does  the  House  work  ? 

Without  some  sort  of  organization,  an  assembly  of  three 
hundred  and  thirty  men  would  be  a  mob,  so  necessity  has  pro¬ 
vided  m  the  system  of  committees  a  substitute  for  the  Euro¬ 
pean  party  organization.  This  system  will  be  explained  in 
the  next  chapter;  for  the  present  it  is  enough  to  observe  that 
when  a  matter  which  has  been  (as  all  bills  are)  referred  to  a 
committee,  comes  up  in  the  House  to  be  dealt  with  there,  the 
chairman  of  the  particular  committee  is  treated  as  a  leader 
pro  hac  vice,  and  members  who  knew  nothing  of  the  matter  are 
apt  to  be  guided  by  his  speech  or  his  advice  given  privately. 

If  his  advice  is  not  available,  or  is  suspected  because  he  belongs 
to  the  opposite  party,  they  seek  direction  from  the  member  in 
charge  of  the  bill,  if  he  belongs  to  their  own  party,  or  from 
some  other  member  of  the  committee,  or  from  some  friend 
whom  they  trust.  When  a  debate  arises  unexpectedly  on  a 
question  of  importance,  members  are  often  puzzled  how  to 
vote.  The  division  being  taken,  they  get  some  one  to  move  a 
call  of  yeas  and  nays,  and  while  this  slow  process  goes  on, 
they  scurry  about  asking  advice  as  to  their  action,  and  give 
their  votes  on  the  second  calling  over  if  not  ready  on  the  first. 


114 


THE  NATIONAL  GOVERNMENT 


PART  i 


If  the  issue  is  one  of  serious  consequence  to  the  party,  a  recess 
is  demanded  by  the  majority,  say  for  two  hours.  The  House 
then  adjourns,  each  party  “goes  into  caucus”  (the  Speaker 
possibly  announcing  the  fact),  and  debates  the  matter  with 
closed  doors.  Then  the  House  resumes,  and  each  party  votes 
solid  according  to  the  determination  arrived  at  in  caucus.  In 
spite  of  these  expedients,  surprises  and  scratch  votes  are  not 

uncommon. 

I  have  spoken  of  the  din  of  the  House  of  Representatives, 
of  its  air  of  restlessness  and  confusion,  contrasting  with  the 
staid  gravity  of  the  Senate,  of  the  absence  of  dignity  both  in 
its  proceedings  and  in  the  bearing  and  aspect  of  individual 
members.  All  these  things  notwithstanding,  there  is  some¬ 
thing  impressive  about  it,  something  not  unworthy  of  the  con¬ 
tinent  for  which  it  legislates. 

This  huge  gray  hall,  filled  with  perpetual  clamour,  this  mul¬ 
titude  of  keen  and  eager  faces,  this  ceaseless  coming  and  going 
of  many  feet,  this  irreverent  public,  watching  from  the  gal¬ 
leries  and  forcing  its  way  on  to  the  floor,  all  speak  to  the 
beholder’s  mind  of  the  mighty  democracy,  destined  m  another 
century  to  form  one-lialf  of  civilized  mankind,  whose  affairs 
are  here  debated.  If  the  men  are  not  great,  the  interests  and 
the  issues  are  vast  and  fateful.  Here,  as  so  often  in  America, 
one  thinks  rather  of  the  future  than  of  the  present.  Of  what 
tremendous  struggles  may  not  this  hall  become  the  theatre  m 
ages  yet  far  distant,  when  the  parliaments  of  Europe  rave 
shrunk  to  insignificance  ? 


CHAPTER  XIV 


THE  COMMITTEES  OF  CONGRESS 

When  Congress  first  met  in  1789,  both  Houses  found  them¬ 
selves,  as  the  State  legislatures  had  theretofore  been  and  still 
are,  without  official  members  and  without  leaders.  The  Senate 
occupied  itself  chiefly  with  executive  business,  and  appointed 
no  standing  committees  until  1816.  The  House  however  had 
bills  to  discuss,  plans  of  taxation  to  frame,  difficult  questions 
of  expenditure,  and  particularly  of  the  national  debt,  to  con¬ 
sider.  For  want  of  persons  whose  official  duty  required  them, 
like  English  ministers,  to  run  the  machine  by  drafting  schemes 
and  bringing  the  raw  material  of  its  work  into  shape,  it  was 
forced  to  appoint  committees.  At  first  there  were  few ;  even 
in  1802  we  find  only  five.  As  the  numbers  of  the  House  in¬ 
creased  and  more  business  flowed  in,  additional  committees 
were  appointed  j  and  as  the  House  became  more  and  more 
occupied  by  large  political  questions,  minor  matters  were  more 
and  more  left  to  be  settled  by  these  select  bodies.  Like  all 
legislatures,  the  House  constantly  sought  to  extend  its  vision 
and  its  grasp,  and  the  easiest  way  to  do  this  was  to  provide 
itself  with  new  eyes  and  new  hands  in  the  shape  of  further 
committees. 

To  avoid  the  tedious  repetition  of  details,  I  have  taken  the 
House  of  Representatives  and  its  committees  for  description, 
because  the  system  is  more  fully  developed  there  than  in  the 
Senate.  But  a  very  few  words  on  the  Senate  may  serve  to 
prevent  misconceptions. 

There  were  in  1892  forty-four  standing  Senate  committees, 
appointed  for  two  years,  being  the  period  of  a  Congress.  They 
and  their  chairmen  are  chosen  not  by  the  presiding  officer  but 
by  the  Senate  itself,  voting  by  ballot.  Practically  they  are 
selected  by  caucuses  of  the  majority  and  minority  meeting  in 

115 


116 


THE  NATIONAL  GOVERNMENT 


PART  I 


secret  conclave,  and  then  carried  wholesale  by  vote  m  the  Sen¬ 
ate.  Each  consists  of  from  two  to  thirteen  members,  the  most 
common  numbers  being  seven  and  nine,  and  all  senators  sit  on 
more  than  one  committee,  some  upon  four  or  more.  Ihe  chan- 
man  is  appointed  by  the  Senate  and  not  by  the  committees 
themselves.  There  are  also  select  committees  appointed  for  a 
special  purpose  and  lasting  for  one  session  only.  Every  bill 
introduced  goes  after  its  first  and  second  reading  (which  are 
granted  as  of  course)  to  a  standing  committee,  which  examines 
and  amends  it,  and  reports  it  back  to  the  Senate. 

There  were  in  the  fifty-second  Congress  (May  1892)  fifty 
standing  committees  of  the  House,  i.e.  committees  appointed 
under  standing  regulations,  and  therefore  regularly  formed  at 
the  beginning  of  every  Congress.  Each  committee  consists  of 
from  three  to  sixteen  members,  eleven  and  thirteen  being  the 
commonest  numbers.  Every  member  of  the  House  is  placed 
on  some  one  committee,  not  many  on  more  than  one.  Besides 
these,  select  committees,  seldom  exceeding  ten,  on  particular 
subjects  of  current  interest,  are  appointed  from  time  to  time. 

The  most  important  standing  committees  are  the  following : 

_ Ways  and  means;  appropriations;  elections;  banking  and 

currency;  accounts;  rivers  and  harbours;  judiciary  (includ¬ 
ing  changes  in  private  law  as  well  as  in  courts  of  justice)  ; 
railways  and  canals ;  foreign  affairs ;  naval  affairs ;  military 
affairs ;  public  lands ;  agriculture ;  claims ;  and  the  several 
committees  on  the  expenditures  of  the  various  departments  of 

the  administration  (war,  navy,  etc.). 

The  members  of  every  standing  committee  are  nominated 
by  the  Speaker  at  the  beginning  of  each  Congress,  and  sit 
through  its  two  sessions ;  those  of  a  select  committee  also  by 
the  Speaker,  after  the  committee  has  been  ordered  by  the 
House.  (Senate  committees  sometimes  sit  during  the  recess.) 

The  member  first  named  is  chairman. 

To  some  one  of  these  standing  committees  each  and  every 
bill  is  referred.  Its  second  as  well  as  its  first  reading  is 
granted  as  of  course,  and  without  debate,  since  there  would 
be  no  time  to  discuss  the  immense  number  of  bills  presented. 
When  read  a  second  time  it  is  referred  under  the  general  rules 
to  a  committee;  but  doubts  often  arise  as  to  which  is  the  ap¬ 
propriate  committee,  because  a  bill  may  deal  with  a  subject 


CHAP.  XIV 


THE  COMMITTEES  OF  CONGRESS 


117 


common  to  two  or  more  jurisdictions,  or  include  topics  some 
of  which  belong  to  one  jurisdiction,  others  to  another.  The 
disputes  which  may  in  such  cases  arise  between  several  com¬ 
mittees  lead  to  keen  debates  and  divisions,  because  the  fate  of 
the  measure  may  depend  on  which  of  two  possible  paths  it  is 
made  to  take,  since  the  one  may  bring  it  before  a  tribunal  of 
friends,  the  other  before  a  tribunal  of  enemies.  Such  disputes 
are  determined  by  the  vote  of  the  House  itself. 

Not  having  been  discussed,  much  less  affirmed  in  principle, 
by  the  House,  a  bill  comes  before  its  committee  with  no  pre¬ 
sumption  in  its  favour.  It  is  one  of  many,  and  for  the  most 
a  sad  fate  is  reserved.  The  committee  may  take  evidence 
regarding  it,  may  hear  its  friends  and  its  opponents.  They 
usually  do  hear  the  member  who  has  introduced  it,  since  it 
seldom  happens  that  he  has  himself  a  seat  on  the  committee. 
Members  who  are  interested  approach  the  committee  and  state 
their  case  there,  not  in  the  House,  because  they  know  that  the 
House  will  have  neither  time  nor  inclination  to  listen.  The 
committee  can  amend  the  bill  as  they  please,  and  although  they 
cannot  formally  extinguish  it,  they  can  practically  do  so  by 
reporting  adversely,  or  by  delaying  to  report  it  till  late  in  the 
session,  or  by  not  reporting  it  at  all. 

In  one  or  other  of  these  ways  nineteen-twentieths  of  the 
bills  introduced  meet  their  death,  a  death  which  the  majority 
doubtless  deserve,  and  the  prospect  of  which  tends  to  make 
members  reckless  as  regards  both  the  form  and  the  substance 
of  their  proposals.  A  motion  may  be  made  in  the  House  that 
the  committee  do  report  forthwith,  and  the  House  can  of 
course  restore  the  bill,  when  reported,  to  its  original  form. 
But  these  expedients  rarely  succeed,  for  few  are  the  measures 
which  excite  sufficient  interest  to  induce  an  impatient  and 
over-burdened  assembly  to  take  additional  work  upon  its  own 
shoulders  or  to  overrule  the  decision  of  a  committee. 

The  deliberations  of  committees  are  usually  secret.  Evi¬ 
dence  is  frequently  taken  with  open  doors,  but  the  newspapers 
do  not  report  it,  unless  the  matter  excite  public  interest ;  and 
even  the  decisions  arrived  at  are  often  noticed  in  the  briefest 
way.  It  is  out  of  order  to  canvass  the  proceedings  of  a  com¬ 
mittee  in  the  House  until  they  have  been  formally  reported  to 
it;  and  the  report  submitted  does  not  usually  state  how  the 


118 


THE  NATIONAL  GOVERNMENT 


PART  I 


members  have  voted,  or  contain  more  than  a  very  curt  outline 
of  what  has  passed.  No  member  speaking  in  the  House  is 
entitled  to  reveal  anything  further. 

A  committee  have  technically  no  right  to  initiate  a  bill,  but 
as  they  can  either  transform  one  referred  to  them,  or,  if  none 
has  been  referred  which  touches  the  subject  they  seek  to  deal 
with,  can  procure  one  to  be  brought  in  and  referred  to  them, 
their  command  of  their  own  province  is  unbounded.  Hence 
the  character  of  all  the  measures  that  may  be  passed  or  even 
considered  by  the  House  upon  a  particular  branch  of  legisla¬ 
tion  depends  on  the  composition  of  the  committee  concerned 
with  that  branch. 

Some  committees,  such  as  those  on  naval  and  military  affairs, 
and  those  on  the  expenditure  of  the  several  departments,  deal 
with  administration  rather  than  legislation.  They  have  power 
to  summon  the  officials  of  the  departments  before  them,  and 
to  interrogate  them  as  to  their  methods  and  conduct.  Author¬ 
ity  they  have  none,  for  officials  are  responsible  only  to  their 
chief,  the  President ;  but  the  power  of  questioning  is  sufficient 
to  check  if  not  to  guide  the  action  of  a  department,  since  im¬ 
perative  statutes  may  follow,  and  the  department,  sometimes 
desiring  legislation  and  always  desiring  money,  has  strong  mo¬ 
tives  for  keeping  on  good  terms  with  those  who  control  legis¬ 
lation  and  the  purse.  It  is  through  these  committees  chiefly 
that  the  executive  and  legislative  branches  of  government 
touch  one  another.  Yet  the  contact,  although  the  most  im¬ 
portant  thing  in  a  government,  is  the  thing  which  the  nation 
least  notices,  and  has  the  scantiest  means  of  watching. 

The  scrutiny  to  which  the  administrative  committees  subject 
the  departments  is  so  close  and  constant  as  to  occupy  much 
of  the  time  of  the  officials  and  seriously  interfere  with  their 
duties.  Not  only  are  they  often  summoned  to  give  evidence, 
they  are  required  to  furnish  minute  reports  on  matters  which 
a  member  of  Congress  could  ascertain  for  himself.  Neverthe¬ 
less  the  House  committees  are  not  certain  to  detect  abuses  or 
peculation,  for  special  committees  of  the  Senate  have  repeatedly 
unearthed  dark  doings  which  had  passed  unsuspected  the  ordeal 
of  a  House  investigation. 

After  a  bill  has  been  debated  and  amended  by  the  committee 
it  is  reported  back  to  the  House,  and  is  taken  up  when  that 


CHAP.  XIV 


THE  COMMITTEES  OF  CONGRESS 


119 


committee  is  called  in  its  order.  One  hour  is  allowed  to  the 
member  whom  his  fellow  committee-men  have  appointed  to  re¬ 
port.  He  seldom  uses  the  whole  of  this  hour,  but  allots  part 
of  it  to  other  members,  opponents  as  well  as  friends,  and  usu¬ 
ally  concludes  by  moving  the  previous  question.  This  pre¬ 
cludes  subsequent  amendments  and  leaves  only  an  hour  before 
the  vote  is  taken.  As  on  an  average  each  committee  (exclud¬ 
ing  the  two  or  three  great  ones)  has  only  two  hours  out  of  the 
whole  ten  months  of  Congress  allotted  to  it  to  present  and 
have  discussed  all  its  bills,  it  is  plain  that  few  measures  can 
be  considered,  and  each  but  shortly,  in  the  House.  The  best 
chance  of  pressing  one  through  is  under  the  rule  which  per¬ 
mits  the  suspension  of  standing  orders  by  a  two-thirds  majority 
during  the  last  six  days  of  the  session. 

What  are  the  results  of  this  system  ? 

It  destroys  the  unity  of  the  House  as  a  legislative  body. 
Since  the  practical  work  of  shaping  legislation  is  done  in  the 
committees,  the  interest  of  members  centres  there,  and  they 
care  less  about  the  proceedings  of  the  whole  body.  It  is  as  a 
committee-man  that  a  member  does  his  real  work.  In  fact  the 
House  has  become  not  so  much  a  legislative  assembly  as  a  huge 
panel  from  which  committees  are  selected. 

It  prevents  the  capacity  of  the  best  members  from  being 
brought  to  bear  upon  any  one  piece  of  legislation,  however  im¬ 
portant.  The  men  of  most  ability  and  experience  are  chosen 
to  be  chairmen  of  the  committees,  or  to  sit  on  the  two  or  three 
greatest.  For  other  committees  there  remains  only  the  rank 
and  file  of  the  House,  a  rank  and  file  half  of  which  is  new  at 
the  beginning  of  each  Congress.  Hence  every  committee  (ex¬ 
cept  the  aforesaid  two  or  three)  is  composed  of  ordinary  per¬ 
sons,  and  it  is  impossible,  save  by  creating  a  special  select 
committee,  to  get  together  what  would  be  called  in  England 
“a  strong  committee,”  i.e.  one  where  half  or  more  of  the 
members  are  exceptionally  capable.  The  defect  is  not  sup¬ 
plied  by  discussion  in  the  House,  for  there  is  no  time  for 
such  discussion. 

It  cramps  debate.  Every  foreign  observer  has  remarked 
how  little  real  debate,  in  the  European  sense,  takes  place  in 
the  House  of  Representatives.  The  very  habit  of  debate,  the 
expectation  of  debate,  the  idea  that  debate  is  needed,  have 


120 


THE  NATIONAL  GOVERNMENT 


PART  I 


vanished,  except  as  regards  questions  of  revenue  and  expendi¬ 
ture,  because  the  centre  of  gravity  lias  shifted  from  the  House 
to  the  committees. 

It  lessens  the  cohesion  and  harmony  of  legislation.  Each 
committee  goes  on  its  own  way  with  its  own  bills  just  as 
though  it  were  legislating  for  one  planet  and  the  other  com¬ 
mittees  for  others.  Hence  a  want  of  policy  and  method  in 
congressional  action.  The  advance  is  haphazard;  the  parts 
have  little  relation  to  one  another  or  to  the  whole. 

It  gives  facilities  for  the  exercise  of  underhand  and  even 
corrupt  influence.  In  a  small  committee  the  voice  of  each 
member  is  well  worth  securing,  and  may  be  secured  with  little 
danger  of  a  public  scandal.  The  press  cannot,  even  when  the 
doors  of  committee  rooms  stand  open,  report  the  proceedings 
of  fifty  bodies;  the  eye  of  the  nation  cannot  follow  and  mark 
what  goes  on  within  them ;  while  the  subsequent  proceedings 
in  the  House  are  too  hurried  to  permit  a  ripping  up  there  of 
suspicious  bargains  struck  in  the  purlieus  of  the  Capitol,  and 
fulfilled  by  votes  given  in  a  committee.  I  do  not  think  that 
corruption,  in  its  grosser  forms,  is  rife  at  Washington.  It 
appears  chiefly  in  the  milder  form  of  reciprocal  jobbing,  or 
(as  it  is  called)  “  log-rolling.”  But  the  arrangements  of  the 
committee  system  have  produced  and  sustain  the  class  of  pro¬ 
fessional  “  lobbyists,”  men,  and  women  too,  who  make  it  their 
business  to  “  see  ”  members  and  procure,  by  persuasion,  impor¬ 
tunity,  or  the  use  of  inducements,  the  passing  of  bills,  public 
as  well  as  private,  which  involve  gain  to  their  promoters. 

It  reduces  responsibility.  In  England,  if  a  bad  Act  is 
passed  or  a  good  bill  rejected,  the  blame  falls  primarily  upon 
the  ministry  in  power,  whose  command  of  the  majority  would 
have  enabled  them  to  defeat  it,  next  upon  the  party  which 
supported  the  ministry,  then  upon  the  individual  members 
who  are  officially  recorded  to  have  u  backed”  it  and  voted  for 
it  in  the  House.  The  fact  that  a  select  committee  recom¬ 
mended  it  —  and  comparatively  few  bills  pass  through  a  select 
committee  —  would  not  be  held  to  excuse  the  default  of  the 
ministry  and  the  majority.  But  in  the  United  States  the 
ministry  cannot  be  blamed,  for  the  Cabinet  officers  do  not  sit 
in  Congress ;  the  House  cannot  be  blamed  because  it  has  only 
followed  the  decision  of  its  committee ;  the  committee  may  be 


CHAP.  XIV 


THE  COMMITTEES  OF  CONGRESS 


121 


an  obscure  body,  whose  members  are  too  insignificant  to  be 
worth  blaming.  The  chairman  is  possibly  a  man  of  note,  but 
the  people  have  no  leisure  to  watch  fifty  chairmen :  they  know 
Congress  and  Congress  only;  they  cannot  follow  the  acts  of 
those  to  whom  Congress  chooses  to  delegate  its  functions. 
No  discredit  attaches  to  the  dominant  party,  because  they 
could  not  control  the  acts  of  the  eleven  men  in  the  committee 
room.  Thus  public  displeasure  rarely  finds  a  victim,  and 
everybody  concerned  is  relieved  from  the  wholesome  dread 
of  damaging  himself  and  his  party  by  negligence,  perversity, 
or  dishonesty.  Only  when  a  scandal  has  arisen  so  serious  as 
to  demand  investigation  is  the  responsibility  of  the  member  to 
his  constituents  and  the  country  brought  duly  home. 

It  lowers  the  interest  of  the  nation  in  the  proceedings  of 
Congress.  Except  in  exciting  times,  when  large  questions 
have  to  be  settled,  the  bulk  of  real  business  is  done  not  in  the 
great  hall  of  the  House  but  in  this  labyrinth  of  committee 
rooms  and  the  lobbies  that  surround  them.  What  takes  place 
in  view  of  the  audience  is  little  more  than  a  sanction,  formal 
indeed  but  hurried  and  often  heedless,  of  decisions  procured 
behind  the  scenes,  whose  mode  and  motives  remain  undisclosed. 
Hence  people  cease  to  watch  Congress  with  that  sharp  eye 
which  every  principal  ought  to  keep  fixed  on  his  agent.  Acts 
pass  unnoticed,  whose  results  are  in  a  few  months  discovered 
to  be  so  grave  that  the  newspapers  ask  how  it  happened  that 
they  were  allowed  to  pass. 

It  throws  power  into  the  hands  of  the  chairmen  of  commit¬ 
tees,  especially,  of  course,  of  those  which  deal  with  finance  and 
with  great  material  interests.  They  become  practically  a 
second  set  of  ministers,  before  whom  the  departments  tremble, 
and  who,  though  they  can  neither  appoint  nor  dismiss  a  post¬ 
master  or  a  tide-waiter,  can  by  legislation  determine  the  policy 
of  the  branch  of  administration  which  they  oversee.  This 
power  is  not  necessarily  accompanied  by  responsibility,  because 
it  is  largely  exercised  in  secret. 

It  enables  the  House  to  deal  with  a  far  greater  number  of 
measures  and  subjects  than  could  otherwise  be  overtaken;  and 
has  the  advantage  of  enabling  evidence  to  be  taken  by  those 
whose  duty  it  is  to  re-shape  or  amend  a  bill.  It  replaces  the 
system  of  interrogating  ministers  in  the  House  which  prevails 


122 


THE  NATIONAL  GOVERNMENT 


PART  I 


in  most  European  chambers ;  and  enables  the  working  of  the 
administrative  departments  to  be  minutely  scrutinized. 

It  sets  the  members  of  the  House  to  work  for  which  their 
previous  training  has  fitted  them  much  better  than  for  either 
legislating  or  debating  “in  the  grand  style.”  They  are  shrewd, 
keen  men  of  business,  apt  for  talk  in  committee,  less  apt  for 
wide  views  of  policy  and  elevated  discourse  in  an  assembly. 
The  committees  are  therefore  good  working  bodies,  but  bodies 
which  confirm  congressmen  in  the  intellectual  habits  they  bring 
with  them  instead  of  raising  them  to  the  higher  platform  of 
national  questions  and  interests. 

Summing  up,  we  may  say  that  under  this  system  the  House 
despatches  a  vast  amount  of  work  and  does  the  negative  part 
of  it,  the  killing  off  of  worthless  bills,  in  a  thorough  way. 
Were  the  committees  abolished  and  no  other  organization  sub¬ 
stituted,  the  work  could  not  be  done.  But  much  of  it,  includ¬ 
ing  most  of  the  private  bills,  ought  not  to  come  before  Congress 
at  all ;  and  the  more  important  part  of  what  remains,  viz.  pub¬ 
lic  legislation,  is  dealt  with  by  methods  which  secure  neither 
the  pressing  forward  of  the  measures  most  needed,  nor  the  due 
debate  of  those  that  are  pressed  forward. 

Why,  if  these  mischiefs  exist,  is  the  system  of  committee 
legislation  maintained  ? 

It  is  maintained  because  none  better  has  been,  or,  as  most 
people  think,  can  be  devised.  “We  have,”  say  the  Americans, 
“three  hundred  and  fifty-six  members  in  the  House,  most  of 
them  eager  to  speak,  nearly  all  of  them  giving  constant  attend¬ 
ance.  The  bills  brought  in  are  so  numerous  that  in  our  two 
sessions,  one  of  seven  or  eight  months,  the  other  of  three 
months,  not  one-twentieth  could  be  fairly  discussed  on  second 
reading  or  in  committee  of  the  Whole.  If  even  this  twentieth 
were  discussed,  no  time  would  remain  for  supervision  of  the 
departments  of  State.  That  supervision  itself  must,  since 
it  involves  the  taking  of  evidence,  be  conducted  through 
committees. 


CHAPTER  XV 


CONGRESSIONAL  LEGISLATION 

Legislation  is  more  specifically  and  exclusively  the  business 
of  Congress  than  it  is  the  business  of  governing  parliaments 
such  as  those  of  England,  Prance,  and  Italy.  We  must  there¬ 
fore,  in  order  to  judge  of  the  excellence  of  Congress  as  a  work¬ 
ing  machine,  examine  the  quality  of  the  legislation  which  it 
turns  out. 

Acts  of  Congress  are  of  two  kinds,  public  and  private.  Pass¬ 
ing  by  private  acts  for  the  present,  though  they  occupy  a  large 
part  of  congressional  time,  let  us  consider  public  acts.  These 
are  of  two  kinds,  those  which  deal  with  the  law  or  its  ad¬ 
ministration,  and  those  which  deal  with  finance,  that  is  to 
say,  provide  for  the  raising  and  application  of  revenue.  I 
devote  this  chapter  to  the  former  class,  and  the  next  to  the 
latter. 

There  are  many  points  of  view  from  which  one  may  regard 
the  work  of  legislation.  I  suggest  a  few  only,  in  respect  of 
which  the  excellence  of  the  work  may  be  tested;  and  propose 
to  ask :  What  security  do  the  legislative  methods  and  habits 
of  Congress  offer  for  the  attainment  of  the  following  desirable 
objects  ?  viz. :  — 

1.  The  excellence  of  the  substance  of  a  bill,  i.e.  its  tendency 
to  improve  the  law  and  promote  the  public  welfare. 

2.  The  excellence  of  the  form  of  a  bill,  i.e.  its  arrangement 
and  the  scientific  precision  of  its  language. 

3.  The  harmony  and  consistency  of  an  act  with  the  other 
acts  of  the  same  session. 

4.  The  due  examination  and  sifting  in  debate  of  a  bill. 

5.  The  publicity  of  a  bill,  i.e.  the  bringing  it  to  the  know¬ 
ledge  of  the  country  at  large,  so  that  public  opinion  may  be 
fully  expressed  regarding  it. 


123 


124 


THE  NATIONAL  GOVERNMENT 


PART  I 


6.  The  honesty  and  courage  of  the  legislative  assembly  in 
rejecting  a  bill,  however  likely  to  be  popular,  which  their  judg¬ 
ment  disapproves. 

7.  The  responsibility  of  some  person  or  body  of  persons  for 
the  enactment  of  a  measure,  i.e.  the  fixing  on  the  right  shoul¬ 
ders  of  the  praise  for  passing  a  good,  the  blame  for  passing  a 
bad,  act. 

The  criticisms  that  may  be  passed  on  American  practice 
under  the  preceding  heads  will  be  made  clearer  by  a  com¬ 
parison  of  English  practice.  Let  us  therefore  first  see  how 
English  bills  and  acts  stand  the  tests  we  are  to  apply  to  the 
work  of  Congress. 

1.  In  England,  as  the  more  important  bills  are  government 
bills,  their  policy  is  sure  to  have  been  carefully  weighed.  The 
ministry  have  every  motive  for  care,  because  the  fortunes  of  a 
first-class  bill  are  their  own  fortunes.  If  it  is  rejected,  they 
fall.  A  specially  difficult  bill  is  usually  framed  by  a  com¬ 
mittee  of  the  Cabinet,  and  then  debated  by  the  Cabinet  as  a 
whole  before  it  appears  in  Parliament. 

2.  In  England,  government  bills  are  prepared  by  the  offi¬ 
cial  government  draftsmen,  two  eminent  lawyers  with  several 
assistants,  who  constitute  an  office  for  this  purpose. 

3.  The  harmony  of  one  government  bill  with  others  of  the 
same  session  is  secured  by  the  care  of  the  official  draftsmen, 
as  well  as  by  the  fact  that  all  emanate  from  one  and  the  same 
ministry.  No  such  safeguards  exist  in  the  case  of  private 
members’  bills,  but  it  is  of  course  the  duty  of  the  ministry  to 
watch  these  legislative  essays,  and  get  Parliament  to  strike 
out  of  any  one  of  them  whatever  is  inconsistent  with  another 
measure  passed  or  intended  to  be  passed  in  the  same  session. 

4.  Difficult  and  complicated  bills  which  raise  no  political 
controversy,  after  having  been  debated  on  second  reading  are 
sometimes  referred  to  a  select  committee,  which  goes  through 
them  and  reports  them  as  amended  to  the  House.  They  are 
afterwards  considered,  first  in  committee  of  the  Whole,  and 
then  by  the  House  on  the  stage  of  report  from  committee  of 
the  Whole  to  the  House. 

5.  Except  in  the  case  of  discussions  at  unseasonable  hours, 
the  proceedings  of  Parliament  are  so  far  reported  in  the  lead¬ 
ing  newspapers  and  commented  on  by  them  that  bills,  even 


CIIAP.  XV 


CONGRESSIONAL  LEGISLATION 


125 


those  of  private  members,  generally  become  known  to  those 
whom  they  may  concern.  There  is  usually  a  debate  on  the 
second  reading,  and  this  debate  attracts  notice. 

6.  A  government  bill  is,  by  the  law  of  its  being,  exposed  to 
the  hostile  criticism  of  the  Opposition,  who  have  an  interest 
in  discrediting  the  ministry  by  disparaging  their  work.  As  re¬ 
spects  private  members’  bills,  it  is  the  undoubted  duty  of  some 
minister  to  watch  them,  and  to  procure  their  amendment  or  re¬ 
jection  if  he  finds  them  faulty.  This  duty  is  discharged  less 
faithfully  than  might  be  wished,  but  perhaps  as  well  as  can  be 
expected  from  weak  human  nature,  often  tempted  to  conciliate 
a  supporter  or  an  “ interest”  by  allowing  a  measure  to  go 
through  which  ought  to  have  been  stopped. 

7.  Eesponsibility  for  everything  done  in  the  House  rests 
upon  the  ministry  of  the  day,  because  they  are  the  leaders  of 
the  majority.  If  they  allow  a  private  member  to  pass  a  bad 
bill,  if  they  stop  him  when  trying  to  pass  a  good  bill,  they  are 
in  theory  no  less  culpable  than  if  they  pass  a  bad  bill  of  their 
own.  Accordingly,  when  the  second  reading  of  a  measure  of 
consequence  is  moved,  it  is  the  duty  of  some  member  of  the 
ministry  to  rise,  with  as  little  delay  as  possible,  and  state 
whether  the  ministry  support  it,  or  oppose  it,  or  stand  neutral. 
Standing  neutral  is,  so  far  as  responsibility  to  the  country  goes, 
practically  the  same  thing  as  supporting. 

The  rules  and  usages  I  have  described  constitute  valuable 
aids  to  legislation,  and  the  quality  of  English  and  Scottish 
legislation,  take  it  all  and  all,  is  fairly  good ;  that  is  to  say, 
the  statutes  are  such  as  public  opinion  (whether  rightly  or 
wrongly)  demands,  and  are  well  drawn  for  the  purposes  they 
aim  at. 

Let  us  now  apply  the  same  test  to  the  legislation  of  Con¬ 
gress.  What  follows  refers  primarily  to  the  House,  but  is 
largely  true  of  the  Senate,  because  in  the  Senate  also  the  com¬ 
mittees  play  an  important  part. 

In  neither  House  of  Congress  are  there  any  government 
bills.  All  measures  are  brought  in  by  private  members  be¬ 
cause  all  members  are  private.  The  nearest  approach  to  the 
government  bill  of  England  is  one  brought  in  by  a  leading 
member  of  the  majority  in  pursuance  of  a  resolution  taken  in 
the  congressional  caucus  of  that  majority.  This  seldom  hap- 


126 


THE  NATIONAL  GOVERNMENT 


PART  I 


pens.  One  must  therefore  compare  the  ordinary  congressional 
bill  with  the  English  private  member’s  bill  rather  than  with  a 
government  measure,  and  expect  to  find  it  marked  by  the 
faults  that  mark  the  former  class.  The  second  difference  is 
that  whereas  in  England  the  criticism  and  amendment  of  a 
bill  takes  place  in  committee  of  the  Whole,  in  the  House  of 
Representatives  it  takes  place  in  a  small  committee  of  sixteen 
members  or  less,  usually  of  eleven.  In  the  Senate  also  the 
committees  do  most  of  the  work,  but  the  committee  of  the 
Whole  occasionally  debates  a  bill  pretty  fully. 

Premising  these  dissimilarities,  I  go  to  the  seven  points 

before  mentioned. 

1.  The  excellence  of  the  substance  of  a  bill  introduced  in 
Congress  depends  entirely  on  the  wisdom  and  care  of  its  in¬ 
troducer.  He  may,  if  self-distrustful,  take  counsel  with  his 
political  allies  respecting  it.  But  there  is  no  security  for  its 
representing  any  opinion  or  knowledge  but  his  own.  It  may 
affect  the  management  of  an  executive  department,  but  the 
introducing  member  does  not  command  departmental  informa¬ 
tion,  and  will,  if  the  bill  passes,  have  nothing  to  do  with  the 
carrying  out  of  its  provisions.  On  the  other  hand,  the  officials 
of  the  government  cannot  submit  bills  ;  and  if  they  find  a  con¬ 
gressman  willing  to  do  so  for  them,  must  leave  the  advocacy 
and  conduct  of  the  measure  entirely  in  his  hands. 

2.  The  drafting  of  a  measure  depends  on  the  pains  taken  and 
skill  exerted  by  its  author.  Senate  bills  are  usually  well  drafted 
because  many  senators  are  experienced  lawyers :  House  bills  are 
often  crude  and  obscure.  There  does  not  exist  either  among  the 
executive  departments  or  in  connection  with  Congress,  any  legal 
office  charged  with  the  duty  of  preparing  bills,  or  of  seeing  that 
the  form  in  which  they  pass  is  technically  satisfactory. 

3.  The  only  security  for  the  consistency  of  the  various 
measures  of  the  same  session  is  to  be  found  in  the  fact  that 
those  which  affect  the  same  matter  ought  to  be  referred  to  the 
same  committee.  However,  it  often  happens  that  there  aie 
two  or  more  committees  whose  spheres  of  jurisdiction  overlap, 
so  that  of  two  bills  handling  cognate  matters,  one  may  go  to 
Committee  A  and  the  other  to  Committee  B.  Should  different 
views  of  policy  prevail  in  these  two  bodies,  they  may  report 
to  the  House  bills  containing  mutually  repugnant  provisions. 


CHAP.  XV 


CONGRESSIONAL  LEGISLATION 


127 


There  is  nothing  except  unusual  vigilance  on  the  part  of  some 
member  interested,  to  prevent  both  bills  from  passing.  That 
mischief  from  this  cause  is  not  serious  arises  from  the  fact 
that  out  of  the  multitude  of  bills  introduced,  few  are  reported 
and  still  fewer  become  law. 

4.  The  function  of  a  committee  of  either  House  of  Congress 
extends  not  merely  to  the  sifting  and  amending  of  the  bills 
referred  to  it,  but  to  practically  re-drawing  them,  if  the  com¬ 
mittee  desires  any  legislation,  or  rejecting  them  by  omitting  to 
report  them  till  near  the  end  of  the  session  if  it  thinks  no 
legislation  needed.  Every  committee  is  in  fact  a  small  bureau 
of  legislation  for  the  matters  lying  within  its  jurisdiction.  It 
has  for  this  purpose  the  advantage  of  time,  of  the  right  to 
take  evidence,  and  of  the  fact  that  some  of  its  members  have 
been  selected  from  their  knowledge  of  or  interest  in  the  topics 
it  has  to  deal  with.  On  the  other  hand,  it  suffers  from  the 
non-publication  of  its  debates,  and  from  the  tendency  of  all 
small  and  secret  bodies  to  intrigues  and  compromises,  compro¬ 
mises  in  which  general  principles  of  policy  are  sacrificed  to 
personal  feeling  or  selfish  interest.  Bills  which  go  in  black 
or  white  come  out  gray.  They  may  lose  all  their  distinctive 
colour ;  or  they  may  be  turned  into  a  medley  of  scarcely  consist¬ 
ent  provisions.  The  member  who  has  introduced  a  bill  may 
not  have  a  seat  on  the  committee,  and  may  therefore  be  unable 
to  protect  his  offspring.  Other  members  of  the  House,  masters 
of  the  subject  but  not  members  of  the  committee,  can  only  be 
heard  as  witnesses.  Although  therefore  there  are  full  oppor¬ 
tunities  for  the  discussion  of  the  bill  by  the  committee,  it  often 
emerges  in  an  unsatisfactory  form,  or  is  quietly  suppressed, 
because  there  is  no  impetus  of  the  general  opinion  of  the  House 
or  the  public  to  push  it  through.  When  the  bill  comes  back  to 
the  House  the  chairman  or  other  reporting  member  of  the  com¬ 
mittee  generally  moves  the  previous  question,  after  which  no 
amendment  can  be  offered.  Debate  ceases  and  the  bill  is 
promptly  passed  or  lost.  In  the  Senate  there  is  a  better  chance 
of  discussion,  for  the  Senate,  having  more  time  and  fewer 
speakers,  can  review  to  some  real  purpose  the  findings  of  its 
committees. 

5.  As  there  is  no  debate  on  the  introduction  or  on  the  second 
reading  of  a  bill,  the  public  is  not  necessarily  apprised  of  the 


128 


THE  NATIONAL  GOVERNMENT 


PART  i 


measures  which,  are  before  Congress.  An  important  measure 
is  of  course  watched  by  the  newspapers  and  so  becomes  known  : 
minor  measures  go  unnoticed. 

6.  The  general  good-nature  of  Americans,  and  the  tendency 
of  members  of  their  legislatures  to  oblige  one  another  by  doing 
reciprocal  good  turns,  dispose  people  to  let  any  bill  go  through 
which  does  not  injure  the  interest  of  a  party  or  of  a  person. 
Such  good-nature  counts  for  less  in  a  committee,  because  a 
committee  has  its  own  views  and  gives  effect  to  them.  But  in 
the  House  there  are  few  views,  though  much  impatience.  The 
House  has  no  time  to  weigh  the  merits  of  a  bill  reported  back 
to  it.  Members  have  never  heard  it  debated.  They  know  no 
more  of  what  passed  in  the  committee  than  the  report  tells 
them.  If  the  measure  is  palpably  opposed  to  their  party 
tenets,  the  majority  will  reject  it:  if  no  party  question  arises 
they  usually  adopt  the  view  of  the  committee. 

7.  What  has  been  said  already  will  have  shown  that  except 
as  regards  bills  of  great  importance,  or  directly  involving  party 
issues,  there  can  be  little  effective  responsibility  for  legislation. 
The  member  who  brings  in  a  bill  is  not  responsible,  because  the 
committee  generally  alters  his  bill.  The  committee  is  little 
observed  and  the  details  of  what  passed  within  the  four  walls 
of  its  room  are  not  published.  The  great  parties  in  the  House 
are  but  faintly  responsible,  because  their  leaders  are  not  bound 
to  express  an  opinion,  and  a  vote  taken  on  a  non-partisan  bill 
is  seldom  a  strict  party  vote.  Individual  members  are  no  doubt 
responsible,  and  a  member  who  votes  against  a  popular  meas¬ 
ure,  one  for  instance  favoured  by  the  workingmen,  will  suffer 
for  it.  But  the  responsibility  of  individuals,  most  of  them 
insignificant,  half  of  them  destined  to  vanish,  like  snow-flakes 
in  a  river,  at  the  next  election,  gives  little  security  to  the 
people. 

The  best  defence  that  can  be  advanced  for  this  system  is 
that  it  has  been  naturally  evolved  as  a  means  of  avoiding  worse 
mischiefs.  It  is  really  a  plan  for  legislating  by  a  number  of 
commissions.  Each  commission,  receiving  suggestions  in  the 
shape  of  bills,  taking  evidence  upon  them,  and  sifting  them  in 
debate,  frames  its  measures  and  lays  them  before  the  House  in 
a  shape  which  seems  designed  to  make  amendment  in  details 
needless,  while  leaving  the  general  policy  to  be  accepted  or 


CHAP.  XV 


CONGRESSIONAL  LEGISLATION 


129 


rejected  by  a  simple  vote  of  the  whole  body.  But  the  mem¬ 
bers  of  the  commissions  have  no  special  training,  no  official 
experience,  little  praise  or  blame  to  look  for,  and  no  means 
of  securing  that  the  overburdened  House  will  ever  come  to  a 
vote  on  their  proposals.  There  is  no  more  agreement  between 
the  views  of  one  commission  and  another  than  what  may  result 
from  the  fact  that  the  majority  in  both  belongs  to  the  same 
party. 

Add  to  the  conditions  above  described  the  fact  that  the 
House  in  its  few  months  of  life  has  not  time  to  deal  with  one 
twentieth  of  the  many  thousand  bills  which  are  thrown  upon 
it,  that  it  therefore  drops  the  enormous  majority  unconsidered, 
though  some  of  the  best  may  be  in  this  majority,  and  passes 
most  of  those  which  it  does  pass  by  a  suspension  of  the  rules 
which  leaves  everything  to  a  single  vote,1  and  the  marvel 
comes  to  be,  not  that  legislation  is  faulty,  but  that  an  intensely 
practical  people  tolerates  such  defective  machinery.  Some 
reasons  may  be  suggested  tending  to  explain  this  phenomenon. 

Legislation  is  a  difficult  business  in  all  free  countries,  and 
perhaps  more  difficult  the  more  free  the  country  is,  because 
the  discordant  voices  are  more  numerous  and  less  under  con¬ 
trol.  America  has  sometimes  sacrificed  practical  convenience 
to  her  dislike  to  authority. 

The  Americans  surpass  all  other  nations  in  their  power  of 
making  the  best  of  bad  conditions,  getting  the  largest  results 
out  of  scanty  materials  or  rough  methods.  Many  things  in 
that  country  work  better  than  they  ought  to  work,  so  to  speak, 
or  could  work  in  any  other  country,  because  the  people  are 
shrewdly  alert  in  minimizing  such  mischiefs  as  arise  from 
their  own  haste  or  heedlessness,  and  because  they  have  a  great 
capacity  for  self-help. 

Aware  that  they  possess  this  gift,  the  Americans  are  content 
to  leave  their  political  machinery  unreformed.  Persons  who 
propose  comprehensive  reforms  are  suspected  as  theorists  and 
crotchet-mongers.  The  national  inventiveness,  active  in  the 
spheres  of  mechanics  and  money-making,  spends  little  of  its 
force  on  the  details  of  governmental  methods. 

The  want  of  legislation  on  topics  where  legislation  is  needed 

1  This  can  be  done  by  a  two-thirds  vote  during  the  last  six  days  of  a  session 
and  on  the  first  and  third  Mondays  of  each  month. 


130 


THE  NATIONAL  GOVERNMENT 


PART  I 


breeds  fewer  evils  than  would  follow  in  countries  like  England 
or  Erance  where  Parliament  is  the  only  law-making  body. 
The  powers  of  Congress  are  limited  to  comparatively  few  sub¬ 
jects  :  its  failures  do  not  touch  the  general  well-being  of  the 
people,  nor  the  healthy  administration  of  the  ordinary  law. 

The  faults  of  bills  passed  by  the  House  are  often  cured  by 
the  Senate,  where  discussion  is  more  leisurely  and  thorough. 
The  committee  system  produces  in  that  body  also  some  of  the 
same  flabbiness  and  colourlessness  in  bills  passed.  But  the 
blunders,  whether  in  substance  or  of  form,  of  the  one  Chamber 
are  frequently  corrected  by  the  other,  and  many  bad  bills  fail 
owing  to  a  division  of  opinion  between  the  Houses. 

The  President’s  veto  kills  off  some  vicious  measures.  He 
does  not  trouble  himself  about  defects  of  form ;  but  where  a 
bill  seems  to  him  opposed  to  sound  policy,  it  is  his  constitu¬ 
tional  duty  to  disapprove  it,  and  to  throw  on  Congress  the 
responsibility  of  passing  it  “  over  his  veto  ”  by  a  two-thirds 
vote.  A  good  President  accepts  this  responsibility. 


CHAPTER  XVI 

CONGRESSIONAL  FINANCE 

Finance  is  a  sufficiently  distinct  and  important  department 
of  legislation  to  need  a  chapter  to  itself ;  nor  does  any  legislat¬ 
ure  devote  a  larger  proportion  of  its  time  than  does  Congress 
to  the  consideration  of  financial  bills.  These  are  of  two  kinds  : 
those  which  raise  revenue  by  taxation,  and  those  which  direct 
the  application  of  the  public  funds  to  the  various  expenses  of 
the  government.  At  present  Congress  raises  all  the  revenue  it 
requires  by  indirect  taxation,1  and  chiefly  by  duties  of  customs 
and  excise ;  so  taxing  bills  are  practically  tariff  bills,  the  excise 
duties  being  comparatively  little  varied  from  year  to  year. 

The  method  of  passing  both  kinds  of  bills  is  unlike  that  of 
most  European  countries.  In  England,  with  which,  of  course, 
America  can  be  most  easily  compared,  although  both  the  levy¬ 
ing  and  spending  of  money  are  absolutely  under  the  control  of 
the  House  of  Commons,  the  House  of  Commons  originates  no 
proposal  for  either.  It  never  either  grants  money  or  orders 
the  raising  of  money  except  at  the  request  of  the  Crown.  Once 
a  year  the  chancellor  of  the  Exchequer  lays  before  it,  together 
with  a  full  statement  of  the  revenue  and  expenditure  of  the 
past  twelve  months,  estimates  of  the  expenditure  for  the 
coming  twelve  months,  and  suggestions  for  the  means  of  meet¬ 
ing  that  expenditure  by  taxation  or  by  borrowing.  He  em¬ 
bodies  these  suggestions  in  resolutions  on  which,  when  the 
House  has  accepted  them,  bills  are  grounded  imposing  certain 
taxes  or  authorizing  the  raising  of  a  loan.  The  House  may  of 
course  amend  the  bills  in  details,  but  no  private  member  ever 
pioposes  a  taxing  Hill,  for  it  is  no  concern  of  any  one  except  the 

1  During  the  Civil  War,  direct  taxes  were  levied  (the  proceeds  of  which 
have  however  been  since  returned  to  the  States);  and  many  other  kinds  of 
taxes  besides  those  mentioned  in  the  text  have  been  imposed  at  different  times. 

131 


132 


THE  NATIONAL  GOVERNMENT 


PART  i 


ministry  to  fill  the  public  treasury.  The  estimates  prepared  by 
the  several  administrative  departments  (Army,  Navy,  Office 
of  Works,  Foreign  Office,  etc.),  and  revised  by  the  Treasury, 
specify  the  items  of  proposed  expenditure  with  much  particu¬ 
larity,  and  fill  three  or  more  bulky  volumes,  which  are  deliv¬ 
ered  to  every  member  of  the  House.  These  estimates  aie 
debated  in  committee  of  the  whole  House,  explanations  being 
required  from  the  ministers  who  represent  the  Treasury  and 
the  several  departments,  and  are  passed  in  a  long  succession  of 
separate  votes.  Members  may  propose  to  reduce  any  particu¬ 
lar  grants,  but  not  to  increase  them ;  no  money  is  ever  voted 
for  the  public  service  except  that  which  the  Crown  has  asked 
for  through  its  ministers.  The  Crown  must  never  ask  for  moie 
than  it  actually  needs,  and  hence  the  ministerial  proposals  for 
taxation  are  carefully  calculated  to  raise  just  so  much  money 
as  will  easily  cover  the  estimated  expenses  for  the  coming 
year.  It  is  reckoned  almost  as  great  a  fault  in  the  finance 
minister  if  he  has  needlessly  overtaxed  the  people,  as  if  he  has 
so  undertaxed  them  as  to  be  left  with  a  deficit.  If  at  the  end  of 
a  year  a  substantial  surplus  appears,  the  taxation  for  next  year 
is  reduced  in  proportion,  supposing  that  the  expenditure  re¬ 
mains  the  same.  Every  credit  granted  by  Parliament  expires 

of  itself  at  the  end  of  the  financial  year. 

In  the  United  States  the  secretary  of  the  Treasury  sends 
annually  to  Congress  a  report  containing  a  statement  of  the 
national  income  and  expenditure  and  of  the  condition  of  the 
public  debt,  together  with  remarks  on  the  system  of  taxation 
and  suggestions  for  its  improvement.  He  also  sends  what  is 
called  his  Annual  Letter,  enclosing  the  estimates,  framed  by 
the  various  departments,  of  the  sums  needed  for  the  public 
services  of  the  United  States  during  the  coming  year.  So  far 
the  secretary  is  like  a  European  finance  minister,  except  that 
he  communicates  with  the  Chamber  on  paper  instead  of  mak¬ 
ing  his  statement  and  proposals  orally.  But  here  the  resem¬ 
blance  stops.  Everything  that  remains  in  the  way  of  financial 
legislation  is  done  solely  by  Congress  and  its  committees,  the 
executive  having  no  further  hand  in  the  matter. 

The  business  of  raising  money  belongs  to  one  committee 
only,  the  standing  committee  of  Ways  and  Means,  consisting 
of  eleven  members.  Its  chairman  is  always  a  leading  man  in 


CHAP.  XVI 


CONGRESSIONAL  FINANCE 


133 


the  party  which  commands  a  majority  in  the  House.  This 
committee  prepares  and  reports  to  the  House  the  bills  needed 
for  imposing  or  continuing  the  various  customs  duties,  excise 
duties,  etc.  The  report  of  the  secretary  has  been  referred  by 
the  House  to  this  committee,  but  the  latter  does  not  necessarily 
base  its  bills  upon  or  in  any  way  regard  that  report.  Neither 
does  it  in  preparing  them  start  from  an  estimate  of  the  sums 
needed  to  support  the  public  service.  It  does  not,  because  it 
cannot :  for  it  does  not  know  what  grants  for  the  public  ser¬ 
vice  will  be  proposed  by  the  spending  committees,  since  the 
estimates  submitted  in  the  secretary’s  letter  furnish  no  trust¬ 
worthy  basis  for  a  guess.  It  does  not,  for  the  further  reason 
that  the  primary  object  of  customs  duties  has  for  many  years 
past  been  not  the  raising  of  revenue  but  the  protection  of 
American  industries  by  subjecting  foreign  products  to  a  very 
high  tariff. 

When  the  revenue  bills  come  to  be  debated  in  committee  of 
the  whole  House  similar  causes  prevent  them  from  being  scru¬ 
tinized  from  the  purely  financial  point  of  view.  Debate  turns 
on  those  items  of  the  tariff  which  involve  gain  or  loss  to  influ¬ 
ential  groups.  Little  inquiry  is  made  as  to  the  amount  needed 
and  the  adaptation  of  the  bills  to  produce  that  amount  and  no 
more.  It  is  the  same  with  ways  and  means  bills  in  the  Sen¬ 
ate.  Communications  need  not  pass  between  the  committees 
of  either  House  and  the  Treasury.  The  person  most  respon¬ 
sible,  the  person  who  most  nearly  corresponds  to  an  English 
chancellor  of  the  Exchequer,  or  a  French  minister  of  Finance, 
is  the  chairman  of  the  House  committee  of  Ways  and  Means. 
But  he  stands  in  no  official  relation  to  the  Treasury,  and  is 
not  required  to  exchange  a  word  or  a  letter  with  its  staff. 
Neither,  of  course,  can  he  count  on  a  majority  in  the  House. 
Though  he  is  a  leading  man  he  is  not  a  leader,  i.e.  he  has  no 
claim  on  the  votes  of  his  own  party,  many  of  whom  may  disap¬ 
prove  of  and  cause  the  defeat  of  his  proposals. 

The  business  of  spending  money  used  to  belong  to  the  com¬ 
mittee  on  Appropriations,  but  in  1883  a  new  committee,  that 
on  Fivers  and  Harbours,  received  a  large  field  of  expenditure ; 
and  in  1886  sundry  other  supply  bills  were  referred  to  sun¬ 
dry  standing  committees.  The  committee  on  Appropriations 
starts  from,  but  does  not  adopt,  the  estimates  sent  in  by  the 


134 


THE  NATIONAL  GOVERNMENT 


PART  I 


secretary  of  the  treasury,  for  the  appropriation  bills  it  pre¬ 
pares  usually  make  large  and  often  reckless  reductions  in  these 
estimates.  The  Rivers  and  Harbours  committee  proposes 
grants  of  money  for  what  are  called  “  internal  improvements/’ 
nominally  in  aid  of  navigation,  but  practically  in  order  to  turn 
a  stream  of  public  money  into  the  State  or  States  where  each 
“  improvement  ”  is  to  be  executed. 

Every  revenue  bill  must,  of  course,  come  before  the  House ; 
and  the  House,  whatever  else  it  may  neglect,  never  neglects  the 
discussion  of  taxation  and  money  grants.  These  are  discussed 
as  fully  as  the  pressure  of  work  permits,  and  are  often  added 
to  by  the  insertion  of  fresh  items,  which  members  interested 
in  getting  money  voted  for  a  particular  purpose  or  locality 
suggest.  These  bills  then  go  to  the  Senate,  which  forthwith 
refers  them  to  its  committees.  The  Senate  committee  on 
Finance  deals  with  the  revenue-raising  bills  ;  the  committee  on 
Appropriations  with  supply  bills.  Both  sets  then  come  before 
the  whole  Senate.  Although  it  cannot  initiate  revenue-raising 
bills,  the  Senate  long  ago  made.  goofi_its  claim  to  amend  appro¬ 
priation  bills,  and  does  so  freely,  adding  items  and  often  raising 
the  total  of  the  grants.  When  the  bills  go  back  to  the  House, 
the  House  usually  rejects  the  amendments  ;  the  Senate  adheres 
to  them,  and  a  conference  committee  is  appointed,  consisting 
of  three  senators  and  three  members  of  the  House,  by  which 
a  compromise  is  settled,  hastily  and  in  secret,  and  accepted, 
generally  in  the  last  days  of  the  session,  by  a  hard-pressed  but 
reluctant  House.  Even  as  enlarged  by  this  committee,  the 
supply  voted  is  often  found  inadequate,  so  a  deficiency  bill  is 
introduced  in  the  following  session,  including  a  second  series  of 
grants  to  the  departments. 

The  European  reader  will  ask  how  all  this  is  or  can  be  done 
by  Congress  without  frequent  communication  from  or  to  the 
executive  government.  There  are  such  communications,  for 
the  ministers,  anxious  to  secure  appropriations  adequate  for 
their  respective  departments,  talk  to  the  chairmen  and  appear 
before  the  committees  to  give  evidence  as  to  departmental 
needs.  But  Congress  does  not  look  to  them  for  guidance  as  in 
the  early  days  it  looked  to  Hamilton  and  Gallatin.  If  the 
House  cuts  down  their  estimates  they  turn  to  the  Senate  and 
beg  it  to  restore  the  omitted  items  j  if  the  Senate  fail  them. 


CHAP.  XVI 


CONGRESSIONAL  FINANCE 


135 


the  only  resource  left  is  a  deficiency  bill  in  the  next  session. 
If  one  department  is  so  starved  as  to  be  unable  to  do  its  work, 
while  another  obtains  lavish  grants  which  invite  jobbery  or 
waste,  it  is  the  committees,  not  the  executive,  whom  the  people 
ought  to  blame.  If,  by  a  system  of  log-rolling,  vast  sums  are 
wasted  upon  useless  public  works,  no  minister  has  any  oppor¬ 
tunity  to  interfere,  any  right  to  protest. 

What  I  have  stated  may  be  summarized  as  follows :  — 

There  is  practically  no  connection  between  the  policy  of 
revenue  raising  and  the  policy  of  revenue  spending,  for  these 
are  left  to  different  committees  whose  views  may  be  opposed, 
and  the  majority  in  the  House  has  no  recognized  leaders  to 
remark  the  discrepancies  or  make  one  or  other  view  prevail. 
In  the  forty-ninth  Congress  a  strong  free-trader  was  chairman 
of  the  tax-proposing  committee  on  Ways  and  Means,  while  a 
strong  protectionist  was  chairman  of  the  spending  committee 
on  Appropriations. 

There  is  no  relation  between  the  amount  proposed  to  be 
spent  in  any  one  year  and  the  amount  proposed  to  be  raised. 
But  for  the  fact  that  the  high  tariff  has,  until  quite  recently, 
produced  a  large  annual  surplus,  financial  breakdowns  must 
have  ensued. 

The  knowledge  and  experience  of  the  permanent  officials 
either  as  regards  the  productivity  of  taxes,  and  the  incidental 
benefits  or  losses  attending  their  collection,  or  as  regards  the 
nature  of  various  kinds  of  expenditure  and  their  comparative 
utility,  can  be  turned  to  account  only  by  interrogating  these 
officials  before  the  committees.  Their  views  are  not  stated  in 
the  House  by  a  parliamentary  chief,  nor  tested  in  debate  by 
arguments  addressed  to  him  which  he  must  there  and  then 
answer. 

Little  check  exists  on  the  tendency  of  members  to  deplete 
the  public  treasury  by  securing  grants  for  their  friends  or  con¬ 
stituents,  or  by  putting  through  financial  jobs  for  which  they 
are  to  receive  some  private  consideration.  If  either  the  major¬ 
ity  of  the  committee  on  Appropriations  or  the  House  itself 
suspects  a  job,  the  grant  proposed  may  be  rejected.  But  it  is 
the  duty  of  no  one  in  particular  to  scent  out  a  job,  and  to  de¬ 
feat  it  by  public  exposure. 

The  nation  becomes  so  puzzled  by  a  financial  policy  varying 


136 


THE  NATIONAL  GOVERNMENT 


PART  I 


from  year  to  year,  and  controlled  by  no  responsible  leaders,  as 
to  feel  diminished  interest  in  congressional  discussions  and 
diminished  confidence  in  Congress.1 

The  result  on  the  national  finance  is  unfortunate.  A 
thoughtful  American  publicist  remarks  :  “  So  long  as  the  debit 
side  of  the  national  account  is  managed  by  one  set  of  men,  and 
the  credit  side  by  another  set,  both  sets  working  separately 
and  in  secret  without  public  responsibility,  and  without  inter¬ 
vention  on  the  part  of  the  executive  official  who  is  nominally 
responsible ;  so  long  as  these  sets,  being  composed  largely  of 
new  men  every  two  years,  give  no  attention  to  business  except 
when  Congress  is  in  session,  and  thus  spend  in  preparing  plans 
the  whole  time  which  ought  to  be  spent  in  public  discussion  of 
plans  already  matured,  so  that  an  immense  budget  is  rushed 
through  without  discussion  in  a  week  or  ten  days  —  just  so 
long  the  finances  will  go  from  bad  to  worse,  no  matter  by  what 
name  you  call  the  party  in  power.  No  other  nation  on  earth 
attempts  such  a  thing,  or  could  attempt  it  without  soon  coming 
to  grief,  our  salvation  thus  far  consisting  in  an  enormous  in¬ 
come,  with  practically  no  drain  for  military  expenditures.” 

It  may  be  asked  how  it  has  happened,  if  these  defects  of 
system  exist,  that  the  finances  of  America  were  for  a  long 
series  of  years  so  flourishing,  and  in  particular  that  the  public 
debt  has  been  paid  off  with  such  regularity  and  speed  that 
from  $3,000,000,000  in  1865  it  had  sunk  to  $1,000,000,000  in 
1890.  Does  not  so  brilliant  a  result  speak  of  a  continuously 
wise  and  skilful  management  of  the  national  revenue  ? 

The  paying  off  of  the  debt  seems  to  be  due  to  the  following 
causes : — 

To  the  prosperity  of  the  country,  which,  with  one  interval  of 
trade  depression,  has  for  twenty-five  years  been  developing  its 
amazing  natural  resources  so  fast  as  to  produce  an  amount  of 

1  “  The  noteworthy  fact  that  even  the  most  thorough  debates  in  Congress 
fail  to  awaken  any  genuine  or  active  interest  in  the  minds  of  the  people  has 
had  its  most  striking  illustrations  in  the  course  of  our  financial  legislation,  for 
though  the  discussions  which  have  taken  place  in  Congress  upon  financial 
questions  have  been  so  frequent,  so  protracted,  and  so  thorough,  engrossing  a 
large  part  of  the  time  of  the  House  on  their  every  recurrence,  they  seem  in 
almost  every  instance  to  have  made  scarcely  any  impression  upon  the  public 
mind.  The  Coinage  Act  of  1873,  by  which  silver  was  demonetized,  had  been 
before  the  country  many  years  ere  it  reached  adoption,  having  been  time  and 
again  considered  by  committees  of  Congress,  time  and  again  printed  anddis- 


chap,  xvi  CONGRESSIONAL  FINANCE 


137 


wealth  which  is  not  only  greater,  but  probably  more  widely 

diffused  through  the  population,  than  in  any  other  part  of  the 
world. 

To  the  spending  habits  of  the  people,  who  allow  themselves 
luxuries  such  as  the  masses  enjoy  in  no  other  country,  and 
therefore  pay  more  than  any  other  people  in  the  way  of  indi¬ 
rect  taxation.  The  fact  that  Federal  revenue  is  raised  by 
duties  of  customs  and  excise  makes  the  people  far  less  sensible 
of  the  pressure  of  taxation  than  they  would  be  did  they  nay 
directly.  J  1  J 

To  the  absence  of  the  military  and  naval  charges  which  press 
so  heavily  on  European  States. 

To  the  maintenance  of  an  exceedingly  high  tariff  advocated 
by  various  powerful  interests  which  can  influence  Congress.  It 
is  the  acceptance  of  the  policy  of  Protection,  rather  than  any 
deliberate  conviction  that  the  debt  ought  to  be  paid  off,  that 
has  caused  the  continuance  of  a  tariff  whose  huge  and  constant 
surpluses  have  enabled  the  debt  to  be  reduced. 

Europeans,  admiring  and  envying  the  rapidity  with  which 
the  war  debt  has  been  reduced,  have  been  disposed  to  credit  the 
Americans  with  brilliant  financial  skill.  That,  however,  which 
was  really  admirable  in  the  conduct  of  the  American  people 
was  not  their  judgment  in  selecting  particular  methods  for  rais¬ 
ing  money,  but  their  readiness  to  submit  during  and  immedi¬ 
ately  after  the  war  to  unprecedentedly  heavy  taxation.  The 
interests  (real  or  supposed)  of  the  manufacturing  classes  have 
caused  the  maintenance  of  the  tariff  then  imposed ;  nature,  by 
giving  the  people  a  spending  power  which  has  rendered  'the 
tariff  marvellously  productive,  has  done  the  rest. 

Under  the  system  of  congressional  finance  here  described 
America  wastes  millions  annually.  But  her  wealth  is  so  great, 
hei  levenue  so  elastic,  that  she  is  not  sensible  of  the  loss.  She 
has  the  glorious  privilege  of  youth,  the  privilege  of  committing 
errors  without  suffering  from  their  consequences. 


cussed  in  one  shape  or  another,  and  having  finally  gained  acceptance  appar¬ 
ently  by  sheer  persistence  and  importunity.”  — Woodrow  Wilson,  Congressional 
Government, :  p.  148  This  remark,  however,  would  not  apply  to  the  tariff 
debates  of  1890. 


CHAPTER  XYII 


X 


THE  RELATIONS  OF  THE  TWO  HOUSES 

The  creation  by  the  Constitution  of  1789  of  two  chambers 
in  the  United  States,  in  place  of  the  one  chamber  which  ex¬ 
isted  under  the  Confederation,  has  been  usually  ascribed  by 
Europeans  to  mere  imitation  of  England.^  There  were,  how¬ 
ever,  better  reasons  to  justify  the  division  of  Congress  into 
two  houses  and  no  more ;  and  so  many  indubitable  instances 
of  such  a  deference  may  be  quoted  that  there  is  no  need  to 
hunt  for  others.  Not  to  dwell  upon  the  fact  that  there  were 
two  chambers  in  all  but  two  1  of  the  thirteen  original  States, 
the  Convention  of  1787  had  two  solid  motives  for  fixing  on 
this  number,  a  motive  of  principle  and  theory,  a  motive  of  im¬ 
mediate  expediency. 

The  chief  advantage  of  dividing  a  legislature  into  two 
branches  is  that  the  one  may  check  the  haste  and  correct  the 
mistakes  of  the  other.  This  advantage  is  purchased  at  the 
price  of  some  delay,  and  of  the  weakness  which  results  from  a 
splitting  up  of  authority.  If  a  legislature  be  constituted  of 
three  or  more  branches,  the  advantage  is  scarcely  increased, 
the  delay  and  weakness  are  immensely  aggravated^) 

To  these  considerations  there  was  added  the  practical  ground 
that  the  division  of  Congress  into  two  houses  supplied  a  means 
of  settling  the  dispute  which  raged  between  the  small  and  the 
large  States.  The  latter  contended  for  a  representation  of  the 
States  in  Congress  proportioned  to  their  respective  populations, 
the  former  for  their  equal  representation  as  sovereign  common¬ 
wealths.  Both  were  satisfied  by  the  plan  which  created  two 
chambers,  in  one  of  which  the  former  principle,  in  the  other  of 
which  the  latter  principle,  was  recognized.  The  country  re- 

i  Pennsylvania  and  Georgia  j  tlie  former  of  which  added  a  Senate  in  1(89, 
the  latter  in  1790. 

138 


chap,  xvii  RELATIONS  OF  THE  TWO  HOUSES 


139 


mamed  a  federation  in  respect  of  the  Senate,  it  became  a 

nation  m  respect  of  the  House :  there  was  no  occasion  for  a 
third  chamber. 

The  respective  characters  of  the  two  bodies  are  wholly 
unlike  those  of  the  so-called  upper  and  lower  chambers  of 
hurope.  Both  equally  represent  the  people,  the  whole  people 
and  nothing  but  the  people.  The  individual  members  come 
trom  the  same  classes  of  the  community ;  and  though  there 
are  more  rich  men  (in  proportion  to  numbers)  in  the  Senate 
than  m  the  House,  the  influence  of  capital  is  not  markedly 
greater.  Both  have  been  formed  by  the  same  social  influences : 
and  the  social  pretensions  of  a  senator  expire  with  his  term  of 
office.  Both  are  possessed  by  the  same  ideas,  governed  by  the 
same  sentiments,  equally  conscious  of  their  dependence  on 
public  opinion.  The  one  has  never  been,  like  the  English 
House  of  Commons,  a  popular  pet,  the  other  never,  like  the 
English  House  of  Lords,  a  popular  bugbear. 

What  is  perhaps  stranger,  the  two  branches  of  Congress 
have  not  exhibited  that  contrast  of  feeling  and  policy  which 
might  be  expected  from  the  different  methods  by  which  they 
are  chosen.  In  the  House  the  large  States  are  predominant : 
ten  out  of  forty-five  (less  than  one-fourth)  return  an  absolute 
majority  of  the  representatives.  In  the  Senate  these  same 
ten  States  have  only  twenty  members  out  of  ninety,  less  than 
a  fourth  of  the  whole.  In  other  words,  these  ten  States  are 
more  than  sixteen  times  as  powerful  in  the  House  as  they  are 
in  the  Senate.  But  as  the  House  has  never  been  the  organ  of 
the  large  States,  nor  prone  to  act  in  their  interest,  so  neither 
has  the  Senate  been  the  stronghold  of  the  small  States,  for 
American  politics  have  never  turned  upon  an  antagonism  be- 
tween  these  two  sets  of  commonwealths.  Questions  relating 
to  States  rights  and  the  greater  or  less  extension  of  the  powers 
of  the  National  government  have  played  a  leading  part  in  the 
history  of  the  Union.  But  although  small  States  might  be 
supposed  to  be  specially  zealous  for  States’  rights,  the  ten¬ 
dency  to  uphold  them  has  been  no  stronger  in  the  Senate 
than  m  the  House.  In  one  phase  of  the  slavery  struggle 
the  Senate  happened  to  be  under  the  control  of  the  slave¬ 
holders  while  the  House  was  not ;  and  then  of  course  the 
toenate  championed  the  sovereignty  of  the  States.  But  this 


140 


THE  NATIONAL  GOVERNMENT 


PART  1 


attitude  was  purely  accidental,  and  disappeared  with  its  transi¬ 
tory  cause. 

The  real  differences  between  the  two  bodies  are  due  to  the 
smaller  size  of  the  Senate,  and  the  consequent  greater  facilities 
for  debate,  to  the  somewhat  superior  capacity  of  its  members, 
to  the  habits  which  its  executive  functions  form  in  individual 

senators,  and  have  formed  in  the  whole  body. 

In  Europe,  where  the  question  as  to  the  utility  of  second 
chambers  is  actively  canvassed,  two  objections  are  made  to 
them,  one  that  they  deplete  the  first  or  popular  chamber  of 
able  men,  the  other  that  they  induce  deadlocks  and  consequent 
stoppage  of  the  wheels  of  government.  On  both  arguments 
light  may  be  expected  from  American  experience^ 

&A1  though  the  Senate  does  draw  off  from  the  House  many  of 
its  ablest  men,  it  is  not  clear,  paradoxical  as  the  observation 
may  appear,  that  the  House  would  be  much  the  better  for  re¬ 
taining  those  men.  The  faults  of  the  House  are  mainly  due, 
not  to  want  of  talent  among  individuals,  but  to  its  defective 
methods,  and  especially  to  the  absence  of  leadership.  These 
are  faults  which  the  addition  of  twenty  or  thirty  able  men 
would  not  cure.  Some  of  the  committees  would  be  stronger, 
and  so  far  the  work  would  be  better  done.  But  the  House  as 
a  whole  would  not  (assuming  its  rules  and  usages  to  remain 
*what  they  are  now)  be  distinctly  a  greater  power  in  the  coun¬ 
try.  On  the  other  hand,  the  merits  of  the  Senate  are  largely 
due  to  the  fact  that  it  trains  to  higher  efficiency  the  ability 
which  it  has  drawn  from  the  House,  and  gives  that  ability  a 
sphere  in  which  it  can  develop  with  better  results.  Were  the 
Senate  and  the  House  thrown  into  one,  the  country  would  suf¬ 
fer  more,  I  think  much  more,  by  losing  the  Senate  than  it 
would  gain  by  improving  the  House,  for  the  united  body 
would  have  the  qualities  of  the  House  and  not  those  of  the 

Senate.  ,  . 

Collisions  between  the  two  Houses  are  frequent.  Each  is 
jealous  and  combative.  Each  is  prone  to  alter  the  bills  that 
come  from  the  other;  and  the  Senate  in  particular  knocks 
about  remorselessly  those  favourite  children  of  the  House,  the 
appropriation  bills.  The  fact  that  one  House  has  passed  a  bill 
goes  but  a  little  way  in  inducing  the  other  to  pass  it ;  the  Sen¬ 
ate  would  reject  twenty  House  bills  as  readily  as  one.  Dead- 


CHAP.  XVII 


RELATIONS  OF  TIIE  TWO  HOUSES 


141 


locks,  however,  disagreements  over  serious  issues  which  stop 
the  machinery  of  administration,  are  not  common.  They  rarely 
cause  excitement  or  alarm  outside  Washington,  because  the 
country,  remembering  previous  instances,  feels  sure  they  will 
be  adjusted,  and  knows  that  either  House  would  yield  were  it 
unmistakably  condemned  by  public  opinion.  The  executive 
government  goes  on  undisturbed,  and  the  worst  that  can  hap¬ 
pen  is  the  loss  of  a  bill  which  may  be  passed  four  months  later. 
Even  as  between  the  two  bodies  there  is  no  great  bitterness  in 
these  conflicts,  because  the  causes  of  quarrel  do  not  lie  deep. 
Sometimes  it  is  self-esteem  that  is  involved,  the  sensitive  self¬ 
esteem  of  an  assembly.  Sometimes  one  or  other  House  is 
playing  for  a  party  advantage.  That  intensity  which  in  the 
similar  contests  of  Europe  arises  from  class  feeling  is  absent, 
because'  there  is  no  class  distinction  between  the  two  American 
chambers. .  Thus  the  country  seems  to  be  watching  a  fencing 
match  rafher  than  a  combat  d  outrance. 

I  dwell  upon  this  substantial  identity  of  character  in  the 
Senate  and  the  House  because  it  explains  the  fact,  surprising 
to  a  European,  that  two  perfectly  co-ordinate  authorities, 
neither  of  which  has  any  more  right  than  its  rival  to  claim  to 
speak  for  the  whole  nation,  manage  to  get  along  together. 
Their  quarrels  are  professional  and  personal  rather  than  con¬ 
flicts  of  adverse  principles.  (^The  two  bodies  are  not  hostile 
elements  in  the  nation,  striving  for  supremacy,  but  servants  of 
the  same  master,  whose  word  of  rebuke  will  quiet  them.) 

The  United  States  is  the  only  great  country  in  the  world  in 
which  the  two  Houses  are  really  equal  and  co-ordinate.  Such 
a  system  could  hardly  work,  and  therefore  could  not  last,  if 
the  executive  were  the  creature  of  either  or  of  both,  nor  unless 
both  were  in  close  touch  with  the  sovereign  people. 

When  each  chamber  persists  in  its  own  view,  the  regular 
proceeding  is  to  appoint  a  committee  of  conference,  consist¬ 
ing  of  three  members  of  the  Senate  and  three  of  the  House. 
These  six  meet  in  secret,  and  generally  settle  matters  by  a 
compromise,  which  enables  each  side  to  retire  with  honour. 
When  appropriations  are  involved,  a  sum  intermediate  be¬ 
tween  the  smaller  one  which  the  House  proposes  to  grant 
and  the  larger  one  desired  by  the  Senate  is  adopted.  If  no 
compromise  can  be  arranged,  the  conflict  continues  till  one 


142 


THE  NATIONAL  GOVERNMENT 


PART  I 


side  yields  or  it  ends  by  an  adjournment,  which  of  course 
involves  the  failure  of  the  measure  disagreed  upon. 

In  a  contest  the  Senate  usually,  though  not  invariably,  gets 
the  better  of  the  House.  It  is  smaller,  and  can  therefore  more 
easily  keep  its  majority  together ;  its  members  are  more  expe¬ 
rienced;  and  it  has  the  great  advantage  of  being  permanent, 
whereas  the  House  is  a  transient  body.  The  Senate  can  hold 
out,  because  if  it  does  not  get  its  way  at  once  against  the 
House,  it  may  do  so  when  a  new  House  comes  up  to  Wash¬ 
ington.  The  House  cannot  afford  to  wait,  because  the  hour 
of  its  own  dissolution  is  at  hand.  Besides,  while  the  House 
does  not  know  the  Senate  from  inside,  the  Senate,  many  of 
whose  members  have  sat  in  the  House,  knows  all  the  “ins 
and  outs”  of  its  rival,  can  gauge  its  strength  and  play  upon 
its  weakness. 


CHAPTER  XVIII 


GENERAL  OBSERVATIONS  ON  CONGRESS 

After  this  inquiry  into  the  composition  and  working  of  each 
branch  of  Congress,  it  remains  for  me  to  make  some  observa¬ 
tions  which  apply  to  both  Houses,  and  which  may  tend  to 
indicate  the  features  that  distinguish  them  from  the  represen¬ 
tative  assemblies  of  the  Old  World.  The  European  reader 
must  bear  in  mind  three  points  which,  in  following  the  details 
of  the  last  few  chapters,  he  may  have  forgotten.  The  first  is 
that  Congress  is  not,  like  the  Parliaments  of  England,  France, 
and  Italy,  a  sovereign  assembly,  but  is  subject  to  the  Consti¬ 
tution,  which  only  the  people  can  change.  The  second  is, 
that  it  neither  appoints  nor  dismisses  the  executive  govern¬ 
ment,  which  springs  directly  from  popular  election.  The 
third  is,  that  its  sphere  of  legislative  action  is  limited  by 
the  existence  of  forty-five  governments  in  the  several  States, 
whose  authority  is  just  as  well  based  as  its  own,  and  cannot 
be  curtailed  by  it. 

I.  The  choice  of  members  of  Congress  is  locally  limited  by 
law  and  by  custom.  Under  the  Constitution  every  represen¬ 
tative  and  every  senator  must  when  elected  be  an  inhabitant 
of  the  State  whence  he  is  elected.  Moreover,  State  law  has 
in  many,  and  custom  practically  in  all  States,  established  that 
a  representative  must  be  resident  in  the  congressional  dis¬ 
trict  which  elects  him.1  The  only  exceptions  to  this  practice 
occur  in  large  cities  where  occasionally  a  man  is  chosen  who 
lives  in  a  different  district  of  the  city  from  that  which  returns 

1  The  best  legal  authorities  hold  that  a  provision  of  this  kind  is  invalid, 
because  State  law  has  no  power  to  narrow  the  qualifications  for  a  Federal 
representative  prescribed  by  the  Constitution  of  the  United  States.  And  Con¬ 
gress  would  probably  so  hold  if  the  question  arose  in  a  case  brought  before  it 
as  to  a  disputed  election.  So  far  as  I  have  been  able  to  ascertain,  the  point 
has  never  arisen  for  determination. 


143 


144 


THE  NATIONAL  GOVERNMENT 


PART  I 


him;  but  such  exceptions  are  rare.  This  restriction,  incon¬ 
venient  as  it  is  both  to  candidates,  whose  field  of  choice  in 
seeking  a  constituency  it  narrows,  and  to  constituencies, 
whom  it  debars  from  choosing  persons,  however  eminent, 
who  do  not  reside  in  their  midst,  seems  to  Americans  so  obvi¬ 
ously  reasonable  that  few  persons,  even  in  the  best  educated 
classes,  will  admit  its  policy  to  be  disputable.  In  what  are 
we  to  seek  the  causes  of  this  opinion  ? 

First.  In  the  existence  of  States,  orginally  separate  politi¬ 
cal  communities,  still  for  many  purposes  independent,  and  ac¬ 
customed  to  consider  the  inhabitant  of  another  State  as  almost 
a  foreigner.  A  New  Yorker,  Pennsylvanians  would  say,  owes 
allegiance  to  New  York;  he  cannot  feel  and  think  as  a  citizen 
of  Pennsylvania,  and  cannot  therefore  properly  represent  Penn¬ 
sylvanian  interests.  This  sentiment  has  spread  by  a  sort  of 
sympathy,  this  reasoning  has  been  applied  by  a  sort  of  anal¬ 
ogy,  to  the  counties,  the  cities,  the  electoral  districts  of  the 
State  itself.  State  feeling  has  fostered  local  feeling ;  the  local¬ 
ity  deems  no  man  a  fit  representative  who  has  not,  by  residence 
in  its  limits,  and  by  making  it  his  political  home,  the  place 
where  he  exercises  his  civic  rights,  become  soaked  with  its 
own  local  sentiment. 

Secondly.  Much  of  the  interest  felt  in  the  proceedings 
of  Congress  relates  to  the  raising  and  spending  of  money. 
Changes  in  the  tariff  may  affect  the  industries  of  a  locality ; 
or  a  locality  may  petition  for  an  appropriation  of  public  funds 
to  some  local  public  work,  the  making  of  a  harbour,  or  the 
improvement  of  the  navigation  of  a  river.  In  both  cases  it 
is  thought  that  no  one  but  an  inhabitant  can  duly  compre¬ 
hend  the  needs  or  zealously  advocate  the  demands  of  a  neigh¬ 
bourhood. 

Thirdly.  Inasmuch  as  no  high  qualities  of  statesmanship 
are  expected  from  a  congressman,  a  district  would  think  it  a 
slur  to  be  told  that  it  ought  to  look  beyond  its  own  borders  for 
a  representative ;  and  as  the  post  is  a  paid  one,  the  people 
feel  that  a  good  thing  ought  to  be  kept  for  one  of  themselves 
rather  than  thrown  away  on  a  stranger.  It  is  by  local  political 
work,  organizing,  canvassing,  and  haranguing,  that  a  party  is 
kept  going :  and  this  work  must  be  rewarded. 

So  far  as  the  restriction  to  residents  in  a  State  is  concerned 


ciiap.  xviii  GENERAL  OBSERVATIONS  ON  CONGRESS 


145 


it  is  intelligible.  The  senator  was  originally  a  sort  of  am¬ 
bassador  from  his  State.  He  is  chosen  by  the  legislature  or 
collective  authority  of  his  State.  He  cannot  well  be  a  citizen 
of  one  State  and  represent  another.  Even  a  representative  in 
the  House  from  one  State  who  lived  in  another  might  be  per¬ 
plexed  by  a  divided  allegiance,  though  there  are  groups  of 
States,  such  as  those  of  the  North-west,  whose  great  industrial 
interests  are  substantially  the  same.  But  what  reason  can 
there  be  for  preventing  a  man  resident  in  one  part  of  a  State 
from  representing  another  part,  a  Philadelphian,  for  instance, 
from  being  returned  for  Pittsburg,  or  a  Bostonian  for  Lenox 
in  the  west  of  Massachusetts  ?  In  Europe  it  is  not  found  that 
a  member  is  less  active  or  successful  in  urging  the  local 
interests  of  his  constituency  because  he  does  not  live  there. 
He  is  often  more  successful,  because  more  personally  influen¬ 
tial  or  persuasive  than  any  resident  whom  the  constituency 
could  supply ;  and  in  case  of  a  conflict  of  interests  he  always 
feels  his  efforts  to  be  owing  first  to  his  constituents,  and  not 
to  the  place  in  which  he  happens  to  reside. 

The  mischief  is  two-fold.  Inferior  men  are  returned,  because 
there  are  many  parts  of  the  country  which  do  not  grow  states¬ 
men,  where  nobody,  or  at  any  rate  nobody  desiring  to  enter 
Congress,  is  to  be  found  above  a  moderate  level  of  political 
capacity.  And  men  of  marked  ability  and  zeal  are  prevented 
from  forcing  their  way  in.  Such  men  are  produced  chiefly  in 
the  great  cities  of  the  older  States.  There  is  not  room  enough 
there  for  nearly  all  of  them,  but  no  other  doors  to  Congress 
are  open.  Boston,  New  York,  Philadelphia,  Baltimore,  could 
furnish  six  or  eight  times  as  many  good  members  as  there  are 
seats  in  these  cities.  As  such  men  cannot  enter  from  their 
place  of  residence,  they  do  not  enter  at  all,  and  the  nation  is 
deprived  of  the  benefit  of  their  services.  Careers  are  more¬ 
over  interrupted.  A  promising  politician  may  lose  his  seat  in 
his  own  district  through  some  fluctuation  of  opinion,  or  per¬ 
haps  because  he  has  offended  the  local  wirepullers  by  too 
much  independence.  Since  he  cannot  find  a  seat  elsewhere  he 
is  stranded ;  his  political  life  is  closed,  while  other  young  men 
inclined  to  independence  take  warning  from  his  fate.  Changes 
in  the  State  laws  would  not  remove  the  evil,  for  the  habit  of 
choosing  none  but  local  men  is  rooted  so  deeply  that  it  would 


146 


THE  NATIONAL  GOVERNMENT 


PART  I 


probably  long  survive  the  abolition  of  a  restrictive  law,  and  it 
is  just  as  strong  in  States  where  no  such  law  exists. 

II.  Every  senator  and  representative  receives  a  salary  at 
present  fixed  at  $5000  per  annum,  besides  an  allowance  (called 
mileage)  of  20  cents  per  mile  for  travelling  expenses  to  and 
from  Washington,  and  $125  for  stationery.  The  salary  is 
looked  upon  as  a  matter  of  course.  It  was  not  introduced  for 
the  sake  of  enabling  workingmen  to  be  returned  as  members, 
but  on  the  general  theory  that  all  public  work  ought  to  be 
paid  for.1  The  reasons  for  it  are  stronger  than  in  England  or 
France,  because  the  distance  to  Washington  from  most  parts 
of  the  United  States  is  so  great,  and  the  attendance  required 
there  so  continuous,  that  a  man  cannot  attend  to  his  profession 
or  business  while  sitting  in  Congress.  If  he  loses  his  liveli¬ 
hood  in  serving  the  community,  the  community,  it  is  held, 
ought  to  compensate  him,  not  to  add  that  the  class  of  persons 
whose  private  means  put  them  above  the  need  of  a  lucrative 
calling,  or  of  compensation  for  interrupting  it,  is  comparatively 
small  even  now,  and  hardly  existed  when  the  Constitution  was 
framed. 

III.  A  congressman’s  tenure  of  his  place  is  usually  short. 
Senators  are  sometimes  returned  for  two,  three,  or  even  four 
successive  terms  by  the  legislatures  of  their  States,  although  it 
may  befall  even  the  best  of  them  to  be  thrown  out  by  a  change 
in  the  balance  of  parties,  or  by  the  intrigues  of  an  opponent. 
But  a  member  of  the  House  can  seldom  feel  safe  in  the  saddle. 
If  he  is  so  eminent  as  to  be  necessary  to  his  party,  or  if  he 
maintains  intimate  relations  with  the  leading  local  wirepullers 
of  his  district,  he  may  in  the  Eastern  and  Middle,  and  still 
more  in  the  Southern  States,  hold  his  ground  for  three  or  four 
Congresses,  i.e.  for  six  or  eight  years.  Few  do  more  than  this. 
In  the  West  a  member  is  fortunate  if  he  does  even  this.  So 
far  from  its  being  a  reason  for  re-electing  a  man  that  he  has 
been  a  member  already,  it  is  a  reason  for  passing  him  by,  and 
giving  somebody  else  a  turn.  Rotation  in  office,  dear  to  the 
Democrats  of  Jefferson’s  school  a  century  ago,  still  charms  the 
less  educated,  who  see  in  it  a  recognition  of  equality,  and  have 

1  Benjamin  Franklin  argued  strongly  in  the  Convention  of  1787  against  this 
theory,  but  found  little  support.  See  his  remarkable  speech  in  Mr.  John 
Bigelow’s  Life  of  Franklin,  vol.  iii.  p.  389. 


Chap,  xviii  GENERAL  OBSERVATIONS  ON  CONGRESS 


147 


no  sense  of  the  value  of  special  knowledge  or  training.  They 
like  it  for  the  same  reason  that  the  Democrats  of  Athens  liked 
the  choice  of  magistrates  by  lot.  It  is  a  recognition  and  appli¬ 
cation  of  equality. 

An  ambitious  congressman  is  therefore  forced  to  think  day 
and  night  of  his  re-nomination,  and  to  secure  it  not  only  by 
procuring,  if  he  can,  grants  from  the  Federal  treasury  for  local 
purposes,  and  places  for  the  relatives  and  friends  of  the  local 
wirepullers  who  control  the  nominating  conventions,  but  also 
by  sedulously  “  nursing  ”  the  constituency  during  the  vacations. 
No  habit  could  more  effectually  discourage  noble  ambition  or 
check  the  growth  of  a  class  of  accomplished  statesmen.  There 
are  few  walks  of  life  in  which  experience  counts  for  more  than 
it  does  in  parliamentary  politics.  It  is  an  education  in  itself, 
an  education  in  which  the  quick-witted  Western  American 
would  make  rapid  progress  were  he  suffered  to  remain  long 
enough  at  Washington.  At  present  he  is  not  suffered,  for 
nearly  one-half  of  each  successive  House  consists  of  new  men, 
while  the  old  members  are  too  much  harassed  by  the  trouble 
of  procuring  their  re-election  to  have  time  or  motive  for  the 
serious  study  of  political  problems.  This  is  what  comes  of  the 
doctrine  that  a  member  ought  to  be  absolutely  dependent  on 
his  constituents,  and  of  the  notion  that  politics  is  neither  a 
science,  nor  an  art,  nor  even  an  occupation,  like  farming  or 
storekeeping,  in  which  one  learns  by  experience,  but  a  thing 
that  comes  by  nature,  and  for  which  one  man  of  common  sense 
is  as  fit  as  another. 

IV.  The  last-mentioned  evil  is  aggravated  by  the  short 
duration  of  a  Congress.  Short  as  it  seems,  the  two  years’  term 
was  warmly  opposed,  when  the  Constitution  was  framed,  as 
being  too  long.  The  Constitutions  of  the  several  States, 
framed  when  they  shook  off  the  supremacy  of  the  British 
Crown,  all  fixed  one  year,  except  the  ultra-democratic  Connect¬ 
icut  and  Rhode  Island,  where  under  the  colonial  charters  a 
legislature  met  every  six  months,  and  South  Carolina,  which 
had  fixed  two  years.  So  essential  to  republicanism  was  this 
principle  deemed,  that  the  maxim  u  where  annual  elections 
end  tyranny  begins  ”  had  passed  into  a  proverb ;  and  the 
authors  of  the  Federalist  were  obliged  to  argue  that  the  limited 
authority  of  Congress,  watched  by  the  executive  on  one  side, 


148 


THE  NATIONAL  GOVERNMENT 


PART  I 


and  the  State  legislatures  on  the  other,  would  prevent  so  long 
a  period  as  two  years  from  proving  dangerous  to  liberty,  while 
it  was  needed  in  order  to  enable  the  members  to  master  the  laws 
and  understand  the  conditions  of  different  parts  of  the  Union. 

At  present  the  two  years’  term  is  justified  on  the  ground 
that  it  furnishes  a  proper  check  on  the  President  by  inter¬ 
posing  an  election  in  the  middle  of  his  term.  One  is  also  told 
that  these  frequent  elections  are  necessary  to  keep  up  popular 
interest  in  current  politics,  nor  do  some  fail  to  hint  that  the 
temptations  to  jobbing  would  overcome  the  virtue  of  members 
who  had  a  longer  term  before  them.  Where  American  opinion 
is  unanimous,  it  would  be  presumptuous  for  a  stranger  to 
dissent.  Yet  the  remark  may  be  permitted  that  the  dangers 
originally  feared  have  proved  chimerical.  There  is  no  country 
whose  representatives  are  more  dependent  on  popular  opinion, 
more  ready  to  trim  their  sails  to  the  least  breath  of  it.  The 
public  acts,  the  votes,  and  speeches  of  a  member  from  Oregon 
or  Texas  can  be  more  closely  watched  by  his  constituents  than 
those  of  a  Virginian  member  could  be  watched  in  1789. 1  And 
as  the  frequency  of  elections  involves  inexperienced  members, 

the  efficiency  of  Congress  suffers. 

V.  The  numbers  of  the  two  American  Houses  seem  small  to 
a  European  when  compared  on  the  one  hand  with  the  popula¬ 
tion  of  the  country,  on  the  other  with  the  practice  of  European 
States.  The  Senate  has  90  members  against  the  British  House 
of  Lords  with  about  570,  and  the  French  Senate  with  300. 
The  House  has  (1896)  357  against  the  British  House  of  Com¬ 
mons  with  670,  and  the  French  and  Italian  Chambers  with 
584  and  508  respectively. 

The  Americans,  however,  doubt  whether  both  their  Houses 
have  not  already  become  too  large.  They  began  with  26  in 
the  Senate,  65  in  the  House,  numbers  then  censured  as  too 
small,  but  which  worked  well,  and  gave  less  encouragement  to 
idle  talk  and  vain  display  than  the  crowded  halls  of  to-day. 
The  inclination  of  wise  men  is  to  stop  further  increase  when 
the  number  of  400  has  been  reached,  for  they  perceive  that  the 
House  already  suffers  from  disorganization,  and  fear  that  a 
much  larger  one  would  prove  unmanageable. 

1  Of  course  his  conduct  in  committee  is  rarely  known,  but  I  doubt  whether 
the  shortness  of  the  term  makes  him  more  scrupulous. 


chap,  xviii  GENERAL  OBSERVATIONS  ON  CONGRESS 


149 


VI.  American  congressmen  are  more  assiduous  in  their 
attendance  than  the  members  of  most  European  legislatures. 
The  great  majority  not  only  remain  steadily  at  Washington 
through  the  session,  but  are  usually  to  be  found  in  the  Capitol, 
often  in  their  chamber  itself,  while  a  sitting  lasts.  There  is 
therefore  comparatively  little  trouble  in  making  the  quorum 
of  one-half,1  except  when  the  minority  endeavours  to  prevent 
its  being  made,  whereas  in  England  the  House  of  Lords,  whose 
quorum  is  three,  has  seldom  thirty  peers  present,  and  the  House 
of  Commons  often  finds  a  difficulty,  especially  during  the  din¬ 
ner  hour,  in  securing  its  modest  quorum  of  forty.2  This  re¬ 
quirement  of  a  high  quorum,  which  is  prescribed  in  the  Con¬ 
stitution,  has  doubtless  helped  to  secure  a  good  attendance. 

VII.  The  want  of  opportunities  for  distinction  in  Congress 
is  one  of  the  causes  which  make  a  political  career  unattractive 
to  most  Americans.  It  takes  a  new  member  at  least  a  session 
to  learn  the  procedure  of  the  House.  Full-dress  debates  are 
rare,  newspaper  reports  of  speeches  delivered  are  curt  and 
little  read.  The  most  serious  work  is  done  in  committee ;  it 
is  not  known  to  the  world,  and  much  of  it  results  in  nothing, 
because  many  bills  which  a  committee  has  considered  are  per¬ 
haps  never  even  voted  on  by  the  House.  A  place  on  a  good 
House  committee  is  to  be  obtained  by  favour,  and  a  high- 
spirited  man  may  shrink  from  applying  for  it  to  the  Speaker. 
Ability,  tact,  and  industry  make  their  way  in  the  long  run  in 
Congress,  as  they  do  everywhere  else.  But  in  Congress  there 
is,  for  most  men,  no  long  run.  Only  very  strong  local  influ¬ 
ence,  or  some  remarkable  party  service  rendered,  will  enable  a 
member  to  keep  his  seat  through  two  or  three  successive  Con¬ 
gresses.  Nowhere  therefore  does  the  zeal  of  a  young  politician 
sooner  wax  cold  than  in  the  House  of  Bepresentatives.  Un¬ 
fruitful  toil,  the  toil  of  turning  a  crank  which  does  nothing 
but  register  its  own  turnings,  or  of  writing  contributions  which 
an  editor  steadily  rejects,  is  of  all  things  the  most  dishearten¬ 
ing.  It  is  more  disheartening  than  the  non-requital  of  merit ; 
for  that  at  least  spares  the  self-respect  of  the  sufferer. 

1  Though  sometimes  the  sergeant-at-arms  is  sent  round  Washington  with  a 
carriage  to  fetch  members  down  from  their  residences  to  the  Capitol. 

2  Oliver  Cromwell’s  House  of  360  members,  including  30  from  Scotland  and 
30  from  Ireland,  had  a  quorum  of  60. 


150 


THE  NATIONAL  GOVERNMENT 


PART  I 


Now  toil  for  the  public  is  usually  unfruitful  in  the  House 
of  Representatives,  indeed  in  all  Houses.  But  toil  for  the 
pecuniary  interests  of  one’s  constituents  and  friends  is  fruitful, 
for  it  obliges  people,  it  wins  the  reputation  of  energy  and 
smartness,  it  has  the  promise  not  only  of  a  re-nomination,  but 
of  that  possible  seat  in  the  Senate  which  is  the  highest  ambi¬ 
tion  of  the  congressman.  Power,  fame,  perhaps  even  riches,  sit 
upon  that  pinnacle.  But  the  thin-spun  life  is  usually  slit  before 
the  fair  guerdon  has  been  found.  Few  young  men  of  high  gifts 
and  fine  tastes  look  forward  to  entering  public  life,  for  the  prob¬ 
able  disappointments  and  vexations  of  a  life  in  Congress  so  far 
outweigh  its  attractions  that  nothing  but  a  strong  sense  of  public 
duty  suffices  to  draw  such  men  into  it.  Law,  education,  liter¬ 
ature,  the  higher  walks  of  commerce,  finance,  or  railway  work, 
offer  a  better  prospect  of  usefulness,  enjoyment,  or  distinction. 

The  country  does  not  go  to  Congress  to  look  for  its  presiden¬ 
tial  candidates  as  England  looks  to  Parliament  for  its  prime 
ministers.  The  opportunities  by  which  a  man  can  win  distinc¬ 
tion  there  are  few.  He  does  not  make  himself  familiar  to  the 
eye  and  ear  of  the  people.  Congress,  in  short,  is  not  a  focus  of 
political  life  as  are  the  legislatures  of  France,  Italy,  and  Eng¬ 
land.  Though  it  has  become  more  powerful  against  the  several 
States  than  it  was  formerly,  though  it  has  extended  its  arms  in 
every  direction,  and  encroached  upon  the  executive,  it  has  not 
become  more  interesting  to  the  people,  nor  strengthened  its 
hold  on  their  respect  and  affection. 

VIII.  Neither  in  the  Senate  nor  in  the  House  are  there  any 
recognized  leaders.  There  is  no  ministry,  no  ex-ministry  lead¬ 
ing  an  opposition,  no  chieftains  at  the  head  of  definite  groups 
who  follow  their  lead,  as  the  Irish  Nationalist  members  in  the 
British  Parliament  followed  Mr.  Parnell,  and  a  large  section 
in  the  French  and  German  Chambers  followed  M.  Clemenceau 
and  Dr.  Windthorst.  Hence  there  exists  no  regular  working 
agency  for  securing  either  that  members  shall  be  apprised  of 
the  divisions  to  be  expected,  or  that  they  shall  vote  in  those 
divisions  in  a  particular  way. 

To  any  one  familiar  with  the  methods  of  the  English  Parlia¬ 
ment  this  seems  incomprehensible.  How,  he  asks,  can  business 
go  on  at  all,  how  can  each  party  make  itself  felt  as  a  party  with 
neither  leader  nor  whips. 


ciiap.  xviii  GENERAL  OBSERVATIONS  ON  CONGRESS 


151 


Each  party  in  the  House  of  Commons  has,  besides  its  leaders, 
a  member  of  the  House  nominated  by  the  chief  leader  as  his 
aide-de-camp,  and  called  the  whipper-in,  or,  for  shortness,  the 
whip.  The  whip’s  duties  are  (1)  to  inform  every  member 
belonging  to  the  party  when  an  important  division  may  be  ex¬ 
pected,  and  if  he  sees  the  member  in  or  about  the  House,  to 
keep  him  there  until  the  division  is  called  j  (2)  to  direct  the 
members  of  his  own  party  how  to  vote ;  (3)  to  obtain  pairs  for 
them  if  they  cannot  be  present  to  vote ;  (4)  to  “  tell,”  i.e.  count 
the  members  in  every  party  division ;  (5)  to  “  keep  touch  ”  of 
opinion  within  the  party,  and  convey  to  the  leader  a  faithful 
impression  of  that  opinion,  from  which  the  latter  can  judge 
how  far  he  may  count  on  the  support  of  his  whole  party  in  any 
course  he  proposes  to  take.  Without  the  constant  presence 
and  activity  of  the  ministerial  whip  the  wheels  of  government 
could  not  go  on  for  a  day,  because  the  ministry  would  be 
exposed  to  the  risk  of  casual  defeats  which  would  destroy  their 
credit  and  might  involve  their  resignation.  Similarly  the 
Opposition,  and  any  third  or  fourth  party,  find  it  necessary  to 
have  their  whip  or  whips,  because  it  is  only  thus  that  they  can 
act  as  a  party,  guide  their  supporters,  and  bring  their  full 
strength  to  bear  on  a  division. 

The  answer  to  this  question  is  threefold.  Whips  are  not  so 
necessary  at  Washington  as  at  Westminster.  A  sort  of  sub¬ 
stitute  for  them  has  been  devised.  Congress  does  to  some  ex¬ 
tent  suffer  from  the  inadequacy  of  the  substituted  device. 

A  division  in  Congress  has  not  the  importance  it  has  in  the 
House  of  Commons.  There  it  may  throw  out  the  ministry. 
In  Congress  it  never  does  more  than  affirm  or  negative  some 
particular  bill  or  resolution.  Even  a  division  in  the  Senate, 
which  involves  the  rejection  of  a  treaty  or  of  an  appointment  to 
some  great  office,  does  not  disturb  the  tenure  of  the  executive. 
Hence  it  is  not  essential  to  the  majority  that  its  full  strength 
should  be  always  at  hand,  nor  has  a  minority  party  any  great 
prize  set  before  it  as  the  result  of  a  successful  vote. 

Questions,  however,  arise  in  which  some  large  party  interest 
is  involved.  There  may  be  a  bill  by  which  the  party  means  to 
carry  out  its  main  views  of  policy  or  perhaps  to  curry  favour 
with  the  people,  or  a  resolution  whereby  it  hopes  to  damage  a 
hostile  executive.  In  such  cases  it  is  important  to  bring  up 


152 


THE  NATIONAL  GOVERNMENT 


PART  i 


every  vote.  Accordingly  at  the  beginning  of  every  Congress  a 
caucus  committee  is  elected  by  the  majority,  and  it  becomes  the 
duty  of  the  chairman  and  secretary  of  this  committee  (to  whom, 
in  the  case  of  a  party  bill  supported  by  the  majority,  there  is 
added  the  chairman  of  the  committee  to  which  that  bill  has 
been  referred,  necessarily  a  member  of  the  majority)  to  act  as 
whips,  i.e.  to  give  notice  of  important  divisions  by  sending  out 
a  “  call 57  to  members  of  the  party,  and  to  take  all  requisite 
steps  to  have  a  quorum  and  a  majority  present  to  push  through 
the  bill  or  resolution  to  which  the  party  stands  committed. 
Mutatis  mutandis  (for  of  course  it  is  seldom  an  object  with  the 
minority  to  secure  a  quorum),  the  minority  take  the  same 
course  to  bring  up  their  men  on  important  divisions. 

In  cases  of  gravity  or  doubt,  where  it  is  thought  prudent  to 
consult  or  to  re-stimulate  the  party,  the  caucus  committee  con¬ 
vokes  a  caucus,  i.e.  a  meeting  of  the  whole  party,  at  which  the 
attitude  to  be  assumed  by  the  party  is  debated  with  closed 
doors,  and  a  vote  taken  as  to  the  course  to  be  adopted.  By  this 
vote  every  member  of  the  party  is  deemed  bound,  just  as  he  would 
be  in  England  by  the  request  of  the  leader  conveyed  through 
the  whip.  Disobedience  cannot  be  punished  in  Congress  itself, 
except  of  course  by  social  penalties  ;  but  it  endangers  the  seat 
of  the  too  independent  member,  for  the  party  managers  at 
Washington  will  communicate  with  the  party  managers  in  his 
district,  and  the  latter  will  probably  refuse  to  re-nominate  him 
at  the  next  election.  The  most  important  caucus  of  a  Congress 
is  that  held  at  the  opening  to  select  the  party  candidate  for  the 
speakership,  selection  by  the  majority  being  of  course  equiva¬ 
lent  to  election.  As  the  views  and  tendencies  of  the  Speaker 
determine  the  composition  of  the  committees,  and  thereby  the 
course  of  legislation,  his  selection  is  a  matter  of  supreme  im¬ 
portance,  and  is  preceded  by  weeks  of  intrigue  and  canvassing. 

The  process  of  u  going  into  caucus  v  is  the  regular  American 
substitute  for  recognized  leadership,  and  has  the  advantage  of 
seeming  more  consistent  with  democratic  equality,  because 
every  member  of  the  party  has  in  theory  equal  weight  in  the 
party  meeting.  It  is  used  whenever  a  line  of  policy  has  to  be 
settled,  or  the  whole  party  to  be  rallied  for  a  particular  party 
division.  But  of  course  it  cannot  be  employed  every  day  or 
for  every  bill.  Hence  when  no  party  meeting  has  issued  its 


CHAP.  XVIII 


GENERAL  OBSERVATIONS  ON  CONGRESS 


153 


orders,  a  member  is  comparatively  free  to  vote  as  lie  pleases, 
or  rather  as  he  thinks  his  constituents  please. 

The  congressional  caucus  has  in  troublous  times  to  be  sup¬ 
plemented  by  something  like  obedience  to  regular  leaders.  Mr. 
Thaddeus  Stevens,  for  instance,  led  with  recognized  authority 
the  majority  of  the  House  in  its  struggle  with  President  An¬ 
drew  Johnson.  The  Senate  is  rather  more  jealous  of  the  equal¬ 
ity  of  all  its  members.  No  senator  can  be  said  to  have  any 
authority  beyond  that  of  exceptional  talent  and  experience; 
and  of  course  a  senatorial  caucus,  since  it  rarely  consists  of 
more  than  fifty  persons,  is  a  better  working  body  than  a  House 
caucus,  which  may  exceed  two  hundred.1 

For  the  purpose  of  serious  party  issues  the  House  of  Repre¬ 
sentatives  is  fully  as  much  a  party  body  as  the  House  of 
Commons.  A  member  voting  against  his  party  on  such  an 
issue  is  more  certain  to  forfeit  his  party  reputation  and  his 
seat  than  is  an  English  member.  But  for  the  purpose  of 
ordinary  questions,  of  issues  not  involving  party  fortunes,  a 
representative  is  less  bound  by  party  ties  than  an  English 
member,  because  he  has  neither  leaders  to  guide  him  by  their 
speeches  nor  whips  by  their  private  instructions.  The  appar¬ 
ent  gain  is  that  a  wider  field  is  left  for  independent  judgment 
on  non-partisan  questions.  The  real  loss  is  that  legislation 
becomes  weak  and  inconsistent.  This  conclusion  is  not  encour¬ 
aging  to  those  who  expect  us  to  get  rid  of  party  in  our  legis¬ 
latures.  A  deliberative  assembly  is,  after  all,  only  a  crowd  of 
men ;  and  the  more  intelligent  a  crowd  is,  so  much  the  more 
numerous  are  its  volitions ;  so  much  greater  the  difficulty  of 
agreement.  Bike  other  crowds,  a  legislature  must  be  led  and 
ruled.  Its  merit  lies  not  in  the  independence  of  its  members, 
but  in  the  reflex  action  of  its  opinion  upon  the  leaders,  in  its 
willingness  to  defer  to  them  in  minor  matters,  reserving  dis¬ 
obedience  for  the  issues  in  which  some  great  principle  over¬ 
rides  both  the  obligation  of  deference  to  established  authority 
and  the  respect  due  to  special  knowledge-. 

1  At  one  time  the  congressional  caucus  played  in  American  history  a  great 
part  which  it  has  now  renounced.  From  1800  till  1824  party  meetings  of  sena¬ 
tors  and  representatives  were  held  which  nominated  the  party  candidates  for 
the  presidency,  who  were  then  accepted  by  each  party  as  its  regular  candi¬ 
dates.  In  1828  the  State  legislatures  made  these  nominations,  and  in  1832  the 
present  system  of  national  conventions  was  introduced. 


154 


THE  NATIONAL  GOVERNMENT 


PART  I 


The  spirit  of  party  may  seem  to  be  weaker  in  Congress  than 
in  the  people  at  large.  But  this  is  only  because  the  questions 
which  the  people  decide  at  the  polls  are  always  questions  of 
choice  between  candidates  for  office.  These  are  definite  ques¬ 
tions,  questions  eminently  of  a  party  character,  because  candi¬ 
dates  represent  in  the  America  of  to-day  not  principles  but 
parties.  Whenever  a  vote  upon  persons  occurs  in  Congress, 
Congress  gives  a  strict  party  vote.  Were  the  people  to  vote  at 
the  polls  on  matters  not  explicitly  comprised  within  a  party 
platform,  there  would  be  the  same  uncertainty  as  Congress 
displays.  The  habit  of  joint  action  which  makes  the  life  of  a 
party  is  equally  intense  in  every  part  of  the  American  system. 
But  in  England  the  existence  of  a  Ministry  and  Opposition  in 
Parliament  sweeps  within  the  circle  of  party  action  many 
topics  which  in  America  are  left  outside,  and  therefore  Con¬ 
gress  seems,  but  is  not,  less  permeated  than  Parliament  by 
party  spirit. 


CHAPTER  XIX 


THE  RELATIONS  OF  CONGRESS  TO  THE  PRESIDENT 

So  far  as  they  are  legislative  bodies,  the  House  and  the 
Senate  have  similar  powers  and  stand  in  the  same  relation  to 
the  executive.  We  may  therefore  discuss  them  together,  or 
rather  the  reader  may  assume  that  whatever  is  said  of  the 
House  as  a  legislature  applies  to  the  Senate. 

Although  the  Constitution  forbids  any  Federal  official  to  be 
a  member  of  either  the  House  or  the  Senate,  there  is  nothing 
in  it  to  prevent  officials  from  speaking  there ;  as  indeed  there 
is  nothing  to  prevent  either  House  from  assigning  places  and 
the  right  to  speak  to  any  one  whom  it  chooses.  In  the  early 
days  Washington  came  down  and  delivered  his  opening  speech. 
Occasionally  he  remained  in  the  Senate  during  a  debate,  and 
even  expressed  his  opinion  there.  When  Hamilton,  the  first 
secretary  of  the  treasury,  prepared  his  famous  report  on  the 
National  finances,  he  asked  the  House  whether  they  would  hear 
him  speak  it,  or  would  receive  it  in  writing.  They  chose  the 
latter  course,  and  the  precedent  then  set  has  been  followed  by 
subsequent  ministers,  while  that  set  in  1801  by  President  Jeffer¬ 
son  when  he  transmitted  his  message  in  writing  instead  of  deliv¬ 
ering  a  speech,  has  been  similarly  respected  by  all  his  successors. 

Thus  neither  House  now'  hears  a  member  of  the  executive ; 
and  when  a  minister  appears  before  a  committee,  he  appears 
only  as  a  witness  to  answer  questions,  not  to  state  and  argue 
his  own  case.  There  is  therefore  little  direct  intercourse  be¬ 
tween  Congress  and  the  administration,  and  no  sense  of  inter¬ 
dependence  and  community  of  action  such  as  exists  in  other 
parliamentary  countries.1  Be  it  remembered  also  that  a  min- 

1  The  House  some  years  ago  passed  a  bill  for  transferring  Indian  affairs 
from  the  secretary  of  the  interior  to  the  secretary  of  war  without  consulting 
either  official. 


155 


156 


THE  NATIONAL  GOVERNMENT 


PART  I 


ister  may  never  have  sat  in  Congress,  and  may  therefore  be 
ignorant  of  its  temper  and  habits.  Six  members  of  Mr.  Cleve¬ 
land’s  Cabinet,  in  1888,  had  never  had  a  seat  in  either  House. 
The  President  himself,  although  he  has  been  voted  into  office 
by  his  party,  is  not  necessarily  its  leader,  nor  even  one  among 
its  most  prominent  leaders.  Hence  he  does  not  sway  the  coun¬ 
cils  and  guide  the  policy  of  those  members  of  Congress  who 
belong  to  his  own  side.  No  duty  lies  on  Congress  to  take  up  a 
subject  to  which  he  has  called  attention  as  needing  legislation; 
and  the  suggestions  which  he  makes,  year  after  year,  are  in  fact 
frequently  neglected,  even  when  his  party  has  a  majority  in 
both  Houses,  or  when  the  subject  lies  outside  party  lines. 

The  President  and  his  Cabinet  have  no  recognized  spokes¬ 
man  in  either  House.  A  particular  senator  or  representative 
may  be  in  confidential  communication  with  them,  and  be  the 
instrument  through  whom  they  seek  to  act;  but  he  would 
probably  disavow  rather  than  claim  the  position  of  an  expo¬ 
nent  of  ministerial  wishes.  The  President  can  of  course  in¬ 
fluence  members  of  Congress  through  patronage.  He  may 
give  places  to  them  or  their  friends;  he  may  approve  or  veto 
bills  in  which  they  are  interested;  his  ministers  may  allot 
lucrative  contracts  to  their  nominees.  This  power  is  consider¬ 
able,  but  covert,  for  the  knowledge  that  it  was  being  used 
might  damage  the  member  in  public  estimation  and  expose 
the  executive  to  imputations. 

The  consequence  of  cutting  off  open  relations  has  been  to 
encourage  secret  influence,  which  may  no  doubt  be  used  for 
legitimate  purposes,  but  which,  being  exerted  in  darkness,  is 
seldom  above  suspicion.  When  the  President  or  a  minister  is 
attacked  in  Congress,  it  is  not  the  duty  of  any  one  there  to 
justify  his  conduct.  The  accused  official  may  send  a  written 
defence  or  may  induce  a  member  to  state  his  case ;  but  this 
method  lacks  the  advantages  of  the  European  parliamentary 
system,  under  which  the  person  assailed  repels  in  debate  the 
various  charges,  showing  himself  not  afraid  to  answer  fresh 
questions  and  grapple  with  new  points.  Thus  by  its  exclu¬ 
sion  from  Congress  the  executive  is  deprived  of  the  power  of 
leading  and  guiding  the  legislature  and  of  justifying  in  debate 
its  administrative  acts. 

Next  as  to  the  power  of  Congress  over  the  executive.  Either 


CHAP.  XIX 


CONGRESS  AND  THE  PRESIDENT 


157 


House  of  Congress,  or  both  Houses  jointly,  can  pass  resolu¬ 
tions  calling  on  the  President  or  his  ministers  to  take  certain 
steps,  or  disapproving  steps  they  have  already  taken.  The 
President  need  not  obey  such  resolutions,  need  not  even  notice 
them.  They  do  not  shorten  his  term  or  limit  his  discretion. 
Moreover,  if  the  resolution  be  one  censuring  the  act  of  a  min¬ 
ister,  the  President  does  not  escape  responsibility  by  throwing 
over  the  minister,  because  the  law  makes  him,  and  not  his  ser¬ 
vant  or  adviser,  responsible. 

Either  House  of  Congress  can  direct  a  committee  to  summon 
and  examine  a  minister,  who,  though  he  might  legally  refuse 
to  attend,  never  does  refuse.  The  committee,  when  it  has  got 
him,  can  do  nothing  more  than  question  him.  He  may  evade 
their  questions,  may  put  them  off  the  scent  by  dexterous  con¬ 
cealments.  He  may  with  impunity  tell  them  that  he  means  to 
take  his  own  course.  To  his  own  master,  the  President,  he 
standeth  or  falleth. 

Congress  may  refuse  to  the  President  the  legislation  he 
requests,  and  thus,  by  mortifying  and  embarrassing  him,  may 
seek  to  compel  his  compliance  with  its  wishes.  It  is  only  a 
timid  President,  or  a  President  greatly  bent  on  accomplishing 
some  end  for  which  legislation  is  needed,  who  will  be  moved 
by  such  tactics. 

Congress  can  pass  bills  requiring  the  President  or  any  min¬ 
ister  to  do  or  abstain  from  doing  certain  acts  of  a  kind  hitherto 
left  to  his  free  will  and  judgment,  may,  in  fact,  endeavour  to 
tie  down  the  officials  by  prescribing  certain  conduct  for  them 
in  great  detail.  The  President  will  presumably  veto  such 
bills,  as  contrary  to  sound  administrative  policy.  If,  however, 
he  signs  them,  or  if  Congress  passes  them  over  his  veto,  the 
further  question  may  arise  whether  they  are  within  the  con¬ 
stitutional  powers  of  Congress,  or  are  invalid  as  unduly  trench¬ 
ing  on  the  discretion  which  the  Constitution  leaves  to  the 
executive  chief  magistrate.  If  he  (or  a  minister),  alleging 
them  to  be  unconstitutional,  disobeys  them,  the  only  means  of 
deciding  whether  he  is  right  is  by  getting  the  point  before  the 
Supreme  Court  as  an  issue  of  law  in  some  legal  proceeding. 
This  cannot  always  be  done.  If  it  is  done,  and  the  court 
decide  against  the  President,  then  if  he  still  refuses  to  obey, 
nothing  remains  but  to  impeach  him. 


158 


THE  NATIONAL  GOVERNMENT 


PART  I 


Impeachment,  of  which  an  account  has  already  been  given, 
is  the  heaviest  piece  of  artillery  in  the  congressional  arsenal, 
but  because  it  is  so  heavy  it  is  unlit  for  ordinary  use.  It  is 
like  a  hundred-ton  gun  which  needs  complex  machinery  to 
bring  it  into  position,  an  enormous  charge  of  powder  to  fire  it, 
and  a  large  mark  to  aim  at.  Although  the  one  President 
(Andrew  Johnson)  against  whom  it  has  been  used  had  for 
two  years  constantly,  and  with  great  intemperance  of  lan¬ 
guage,  so  defied  and  resisted  Congress  that  the  whole  machin¬ 
ery  of  government  had  been  severely  strained,  yet  the  Senate 
did  not  convict  him,  because  no  single  offence  had  been  clearly 
made  out.  Thus  impeachment  does  not  tend  to  secure,  and 
indeed  was  never  meant  to  secure,  the  co-operation  of  the 
executive  with  Congress. 

It  accordingly  appears  that  Congress  cannot  compel  the 
dismissal  of  any  official.  It  may  investigate  his  conduct  by  a 
committee  and  so  try  to  drive  him  to  resign.  It  may  request 
the  President  to  dismiss  him,  but  if  his  master  stands  by  him 
and  he  sticks  to  his  place,  nothing  more  can  be  done.  He  may 
of  course  be  impeached,  but  one  does  not  impeach  for  mere 
incompetence  or  laxity,  as  one  does  not  use  steam  hammers  to 
crack  nuts.  Thus  we  arrive  at  the  result  that  while  Congress 
may  examine  the  servants  of  the  public  to  any  extent,  may 
censure  them,  may  lay  down  rules  for  their  guidance,  it  can¬ 
not  get  rid  of  them.  It  is  as  if  the  directors  of  a  company 
were  forced  to  go  on  employing  a  manager  whom  they  had 
ceased  to  trust,  because  it  was  not  they  but  the  shareholders 
who  had  appointed  him. 

There  remains  the  power  which  in  free  countries  has  been 
long  regarded  as  the  citadel  of  parliamentary  supremacy,  the 
power  of  the  purse.  The  Constitution  keeps  the  President 
far  from  this  citadel,  granting  to  Congress  the  sole  right  of 
raising  money  and  appropriating  it  to  the  service  of  the  btate. 
Its  management  of  National  finance  is  significantly  illustrative 
of  the  plan  which  separates  the  legislative  from  the  executive. 
In  this  supremely  important  matter,  the  administration,  instead 
of  proposing  and  supervising,  instead  of  securing  that  each 
department  gets  the  money  that  it  needs,  that  no  money  goes 
where  it  is  not  needed,  that  revenue  is  procured  in  the  least 
troublesome  and  expensive  way,  that  an  exact  yearly  balance 


CHAP.  XIX 


CONGRESS  AND  THE  PRESIDENT 


159 


is  struck,  that  the  policy  of  expenditure  is  self-consistent  and 
reasonably  permanent  from  year  to  year,  is  by  its  exclusion 
from  Congress  deprived  of  influence  on  the  one  hand,  of 
responsibility  on  the  other. 

The  office  of  finance  minister  is  put  into  commission,  and 
divided  between  the  chairmen  of  several  unconnected  commit¬ 
tees  of  both  Houses.  A.  mass  of  business  which  specially 
needs  the  knowledge,  skill,  and  economical  conscience  of  a 
responsible  ministry,  is  left  to  committees  which  are  powerful 
but  not  responsible,  and  to  Houses  whose  nominal  responsi- 
bility  is  in  piactice  sadly  weakened  by  their  want  of  appropri¬ 
ate  methods  and  organization. 

When  Congress  has  endeavoured  to  coerce  the  President  by 
the  use  of  its  money  powers,  the  case  being  one  in  which  it 
could  not  attack  him  by  ordinary  legislation  (either  because 
such  legislation  would  be  unconstitutional,  or  for  want  of  a 
two-thirds  majority),  it  has  proceeded  not  by  refusing  appro- 
pi  iations  altogether,  as  the  British  House  of  Commons  would 
do  in  like  circumstances,  but  by  attaching  what  is  called  a 
“  rider  ”  to  an  appropriation  bill.  Many  years  ago  the  House 
formed,  and  soon  began  to' indulge  freely  in,  the  habit  of  in¬ 
serting  in  bills  appropriating  money  to  the  purposes  of  the 
public  service,  provisions  relating  to  quite  different  matters, 
which  tlieie  was  not  time  to  push  through  in  the  ordinary 
way.  In  1867  Congress  used  this  device  against  President 
Johnson,  with  whom  it  was  then  at  open  war,  by  attaching  to 
an  aimy  appiopriation  bill  a  clause  which  virtually  deprived 
the  President  of  the  command  of  the  army,  entrusting  its 
management  to  the  general  highest  in  command  (General 
Grant).  The  President  yielded,  knowing  that  if  he  refused 
the  bill  would  be  carried  over  his  veto  by  a  two-thirds  vote ; 
and  a  usage  already  mischievous  was  confirmed. 

In  1879  the  majority  in  Congress  attempted  to  overcome,  by 
the  same  weapon,  the  resistance  of  President  Hayes  to  certain 
measures  affecting  the  South  which  they  desired  to  pass.  They 
tacked  these  measures  to  three  appropriation  bills,  army,  legis¬ 
lative,  and  judiciary.  The  minority  in  both  Houses  fought 
hard  against  the  riders,  but  were  beaten.  The  President 
vetoed  all  three  bills,  and  Congress  was  obliged  to  pass  them 
without  the  riders.  Next  session  the  struggle  recommenced  in 


160 


THE  NATIONAL  GOVERNMENT 


PART  I 


the  same  form,  and  the  President,  by  rejecting  the  money  bills, 
again  compelled  Congress  to  drop  the  tacked  provisions.  This 
victory,  which  was  of  course  due  to  the  fact  that  the  dominant 
party  in  Congress  could  not  command  a  two- thirds  majority,  v  as 
deemed  to  have  settled  the  question  as  between  the  executive 
and  the  legislature,  and  may  have  permanently  discouraged 
the  latter  from  recurring  to  the  same  tactics. 

President  Hayes  in  his  veto  messages  argued  strongly  against 
the  whole  practice  of  tacking  other  matters  to  money  bills; 
and  a  rule  of  the  House  now  declares  that  an  appropriation 
bill  shall  not  carry  any  new  legislation.  It  has  certainly 
caused  great  abuses,  and  is  forbidden  by  the  Constitutions  of 
many  States.  Recently  the  President  has  urged  upon  Congress 
the  desirability  of  so  amending  the  Federal  Constitution  as  to 
enable  him,  as  a  State  governor  is  by  some  recent  State  Consti¬ 
tutions  allowed  to  do,  to  veto  single  items  in  an  appropriation 
bill  without  rejecting  the  whole  bill.  Such  an  amendment 
is  desired  by  enlightened  men,  because  it  would  enable  the 
executive  to  do  its  duty  by  the  country  in  defeating  the  petty 
jobs  now  smuggled  into  these  bills,  without  losing  the  sup¬ 
plies  necessary  for  the  public  service  which  the  bills  provide. 
Small  as  the  change  seems,  its  adoption  would  cure  one  of 
the  defects  due  to  the  absence  of  ministers  from  Congress, 
and  save  the  nation  millions  of  dollars  a  year,  by  diminishing 
wasteful  expenditure  on  local  purposes.  But  the  process  of 
amending  the  Constitution  is  so  troublesome  that  even  a  change 
which  involves  no  party  issues  may  remain  unadopted  long 
after  the  best  opinion  has  become  unanimous  in  its  favour. 


CHAPTER  XX 


THE  LEGISLATURE  AND  THE  EXECUTIVE 

The  fundamental  characteristic  of  the  American  National 
government  is  its  separation  of  the  legislative,  executive,  and 
judicial  departments.  This  separation  is  the  merit  which  the 
Philadelphia  Convention  chiefly  sought  to  attain,  and  which 
the  Americans  have  been  wont  to  regard  as  most  completely 
secured  by  their  Constitution.  In  Europe,  as  well  as  in 
America,  men  are  accustomed  to  talk  of  legislation  and  admin¬ 
istration  as  distinct.  But  a  consideration  of  their  nature  will 
show  that  it  is  not  easy  to  separate  these  two  departments  in 
theory  by  analysis,  and  still  less  easy  to  keep  them  apart  in 
practice. 

Wherever  the  will  of  the  people  prevails,  the  legislature, 
since  it  either  is  or  represents  the  people,  can  make  itself 
omnipotent,  unless  checked  by  the  action  of  the  people  them¬ 
selves.  It  can  do  this  in  two  ways.  It  may,  like  the  re¬ 
publics  of  antiquity,  issue  decrees  for  particular  cases  as  they 
arise,  giving  constant  commands  to  all  its  agents,  who  thus  be¬ 
come  mere  servants  with  no  discretion  left  them.  Or  it  may 
frame  its  laws  with  such  particularity  as  to  provide  by  antici¬ 
pation  for  the  greatest  possible  number  of  imaginable  cases,  in 
this  way  also  so  binding  down  its  officials  as  to  leave  them  no 
volition,  no  real  authority. 

Moreover,  every  legislature  tends  so  to  enlarge  its  powers  as 
to  encroach  on  the  executive  ;  and  it  has  great  advantages  for 
so  doing,  because  a  succeeding  legislature  rarely  consents  to 
strike  off  any  fetter  its  predecessor  has  imposed. 

Thus  the  legitimate  issue  of  the  process  would  be  the  extinc¬ 
tion  or  absorption  of  the  executive  as  a  power  in  the  State. 
It  would  become  a  mere  set  of  employes,  obeying  the  legislat¬ 
ure  as  the  clerks  in  a  bank  obey  the  directors.  If  this  does 

M  161 


162 


THE  NATIONAL  GOVERNMENT 


PART  I 


not  happen,  the  cause  is  generally  to  be  sought  in  some  one  or 
more  of  the  following  circumstances :  — 

The  legislature  may  allow  the  executive  the  power  of  appeal¬ 
ing  to  the  nation  against  itself  (England).1 

The  people  may  from  ancient  reverence  or  the  habit  of  mili¬ 
tary  submission  be  so  much  disposed  to  support  the  executive 
as  to  embolden  the  latter  to  defy  the  legislature  (Prussia). 

The  importance  of  foreign  policy  and  the  difficulty  of  taking 
it  out  of  the  hands  of  the  executive  may  be  so  great  that  the 
executive  will  draw  therefrom  an  influence  reacting  m  favour 
of  its  general  weight  and  dignity  (Prussia,  England,  and,  to 
some  extent,  France). 

The  founders  of  the  American  Constitution  were  terribly 
afraid  of  a  strong  executive,  and  desired  to  reserve  the  final 
and  decisive  voice  to  the  legislature,  as  representing  the 
people.  They  could  not  adopt  the  Greek  method  of  an  assem¬ 
bly  both  executive  and  legislative,  for  Congress  was  to  be  a 
body  with  limited  powers;  continuous  sittings  would  be  in¬ 
convenient,  and  the  division  into  two  equally  powerful  houses 
would  evidently  unfit  it  to  govern  with  vigour  and  prompti¬ 
tude.  Neither  did  they  adopt  the  English  method  of  a  legis¬ 
lature  governing  through  an  executive  dependent  upon  it.  It 
was  urged  in  the  Philadelphia  Convention  of  1787  that  the  ex¬ 
ecutive  ought  to  be  appointed  by  and  made  accountable  to  the 
legislature,  as  being  the  supreme  power  in  the  National  gov¬ 
ernment.  This  was  overruled,  because  the  majority  of.  the 
Convention  were  fearful  of  “  democratic  haste  and  instability,” 
fearful  that  the  legislature  would,  in  any  event,  become  too 
powerful,  and  therefore  anxious  to  build  up  some  counter 

authority  to  check  and  balance  it. 

By  making  the  President  independent,  and  keeping  him 
and  his  ministers  apart  from  the  legislature,  the  Convention 
thought  they  were  strengthening  him,  as  well  as  protecting  it 
from  attempts  on  his  part  to  corrupt  it.  They  were  also 
weakening  him.  He  lost  the  initiative  in  legislation  which 
the  English  executive  enjoys.  He  had  not  the  English 
king’s  power  of  dissolving  the  legislature  and  throwing 


1  In  France  the  President  can  dissolve  the  Chambers,  but  only  with  the  con¬ 
sent  of  the  Senate. 


CHAP.  XX 


LEGISLATURE  AND  EXECUTIVE 


163 


himself  upon  the  country.  Thus  the  executive  magistrate 
seemed  left  at  the  mercy  of  the  legislature.  It  could  weave 
so  close  a  network  of  statutes  round  him,  that  his  discre¬ 
tion,  his  individual  volition,  seemed  to  disappear,  and  he 
ceased  to  be  a  branch  of  the  government,  being  nothing  more 
than  a  servant  working  under  the  eye  and  at  the  nod  of  his 
master.  This  would  have  been  an  absorption  of  the  executive 
into  the  legislature  more  complete  than  that  which  England 
now  presents,  for  the  English  prime  minister  is  at  any  rate  a 
leader,  perhaps  as  necessary  to  his  parliamentary  majority  as 
it  is  to  him,  whereas  the  President  would  have  become  a  sort 
of  superior  police  commissioner,  irremovable  during  four  years, 
but  debarred  from  acting  either  on  Congress  or  on  the  people. 

Although  the  Convention  may  not  have  realized  how  help¬ 
less  such  a  so-called  executive  must  be,  they  felt  the  danger 
of  encroachments  by  an  ambitious  legislature,  and  resolved  to 
strengthen  him  against  it.  This  was  done  by  giving  the  Presi¬ 
dent  a  veto  which  it  requires  a  two-thirds  vote  of  Congress  to 
override.  In  doing  this  they  partly  reversed  their  previous 
action.  They  had  separated  the  President  and  his  ministers 
from  Congress.  They  now  bestowed  on  him  legislative  func¬ 
tions,  though  in  a  different  form.  He  became  a  distinct  branch 
of  the  legislature,  but  for  negative  purposes  only.  He  could 
not  propose,  but  he  could  refuse.  Thus  the  executive  was 
strengthened,  not  as  an  executive,  but  by  being  connected  with 
the  legislature ;  and  the  legislature,  already  weakened  by  its 
division  into  two  co-equal  Houses,  was  further  weakened  by 
finding  itself  liable  to  be  arrested  in  any  new  departure  on 
which  two-thirds  of  both  Houses  were  not  agreed. 

When  the  two  Houses  are  of  one  mind,  and  the  party  hostile 
to  the  President  has  a  two- thirds  majority  in  both,  the  execu¬ 
tive  is  almost  powerless.  It  may  be  right  that  he  should  be 
powerless,  because  such  majorities  in  both  Houses  presumably 
indicate  a  vast  preponderance  of  popular  opinion  against  him. 
The  fact  to  be  emphasized  is,  that  in  this  case  all  “  balance  of 
powers  ”  is  gone.  The  legislature  has  swallowed  up  the  execu¬ 
tive,  in  virtue  of  the  principle  from  which  this  discussion 
started,  viz.  that  the  executive  is  in  free  States  only  an  agent 
who  may  be  so  limited  by  express  and  minute  commands  as 
to  have  no  volition  left  him. 


164 


THE  NATIONAL  GOVERNMENT 


PART  I 


The  strength  of  Congress  consists  in  the  right  to  pass  stat¬ 
utes  ;  the  strength  of  the  President  in  his  right  to  veto  them. 
But  foreign  affairs,  as  we  have  seen,  cannot  be  brought  within 
the  scope  of  statutes.  How  then  was  the  American  legislature 
to  deal  with  them  ?  There  were  two  courses  open.  One  was 
to  leave  foreign  affairs  to  the  executive,  as  in  England,  giving 
Congress  the  same  indirect  control  as  the  English  Parliament 
enjoys  over  the  Crown  and  ministry.  This  course  could  not 
be  taken,  because  the  President  is  independent  of  Congress 
and  irremovable  during  his  term.  The  other  course  would 
have  been  for  Congress,  like  a  Greek  assembly,  to  be  its  own 
foreign  office,  or  to  create  a  Foreign  Affairs  committee  of  its 
members  to  handle  these  matters.  As  the  objections  to  this 
course,  which  would  have  excluded  the  chief  magistrate  from 
functions  naturally  incidental  to  his  position  as  official  repre¬ 
sentative  of  the  nation,  were  overwhelmingly  strong,  a  com¬ 
promise  was  made.  The  initiative  in  foreign  policy  and  the 
conduct  of  negotiations  were  left  to  him,  but  the  right  of 
declaring  war  was  reserved  to  Congress,  and  that  of  making 
treaties  to  one,  the  smaller  and  more  experienced,  branch  of 
the  legislature.  A  measure  of  authority  was  thus  suffered  to 
fall  back  to  the  executive  which  would  have  served  to  raise 
materially  his  position  had  foreign  questions  played  as  large  a 
part  in  American  politics  as  they  have  in  French  or  English. 
They  have,  however,  been  comparatively  unimportant,  espe¬ 
cially  since  1815. 

It  may  be  said  that  there  was  yet  another  source  whence 
the  executive  might  draw  strength  to  support  itself  against  the 
legislature,  viz.  those  functions  which  the  Constitution,  deem¬ 
ing  them  necessarily  incident  to  an  executive,  has  reserved  to 
jthe  President  and  excluded  from  the  competence  of  Congress. 
But  examination  shows  that  there  is  scarcely  one  of  these 
which  the  long  arm  of  legislation  cannot  reach.  The  Presi¬ 
dent  is  commander-in-chief  of  the  army,  but  the  numbers  and 
organization  of  the  army  are  fixed  by  statute.  The  President 
makes  appointments,  but  the  Senate  has  the  right  of  rejecting 
them,  and  Congress  may  pass  acts  specifying  the  qualifications 
of  appointees,  and  reducing  the  salary  of  any  official  except 
the  President  himself  and  the  judges.  The  real  strength  of 
the  executive,  therefore,  the  rampart  from  behind  which  it  can 


CHAP.  XX 


LEGISLATURE  AND  EXECUTIVE 


165 


resist  the  aggressions  of  the  legislature,  is  in  ordinary  times 
the  veto  power.1  In  other  words,  it  survives  as  an  executive 
in  virtue  not  of  any  properly  executive  function,  but  of  the 
share  in  legislative  functions  which  it  has  received ;  it  holds 
its  ground  by  force,  not  of  its  separation  from  the  legislature, 
but  of  its  participation  in  a  right  properly  belonging  to  the 
legislature.2 

An  authority  which  depends  on  a  veto  capable  of  being  over¬ 
ruled  by  a  two-thirds  majority  may  seem  frail.  But  the  expe¬ 
rience  of  a  century  has  shown  that,  owing  to  the  almost  equal 
strength  of  the  two  great  parties,  the  Houses  often  differ,  and 
there  is  rarely  a  two-thirds  majority  of  the  same  colour  in  both. 
Hence  the  executive  has  enjoyed  some  independence.  He  is 
strong  for  defence,  if  not  for  attack.  Congress  can,  except 
within  that  narrow  sphere  which  the  Constitution  has  abso¬ 
lutely  reserved  to  him,  baffle  the  President,  can  interrogate, 
check,  and  worry  his  ministers.  But  it  can  neither  drive  him 
the  way  it  wishes  him  to  go,  nor  dismiss  them  for  disobedience 
or  incompetence. 

An  individual  man  has  some  great  advantages  in  combating 
an  assembly.  His  counsels  are  less  distracted.  His  secrets 
are  better  kept.  He  may  sow  discord  among  his  antagonists. 
He  can  strike  a  more  sudden  blow.  Julius  Caesar  was  more 
than  a  match  for  the  Senate,  Cromwell  for  the  Long  Parlia¬ 
ment,  even  Louis  Napoleon  for  the  French  Assembly  of  1851. 
Hence,  when  the  President  happens  to  be  a  strong  man,  reso¬ 
lute,  prudent,  and  popular,  he  may  well  hope  to  prevail  against 
a  body  whom  he  may  divide  by  the  dexterous  use  of  patronage, 

1  In  moments  of  public  danger,  as  during  the  War  of  Secession,  the  execu¬ 
tive  of  course  springs  up  into  immense  power,  partly  because  the  command  of 
the  army  is  then  of  the  first  importance  ;  partly  because  the  legislature,  feel¬ 
ing  its  unfitness  for  swift  and  secret  decisions,  gives  free  rein  to  the  executive, 
and  practically  puts  its  law-making  powers  at  his  disposal. 

2  What  is  said  here  of  the  National  executive  and  National  legislature  is  a 
fortiori  true  of  the  State  executives  and  State  legislatures.  The  State  gov¬ 
ernor  has  no  power  of  independent  action  whatever,  being  checked  at  every 
step  by  State  statutes,  and  his  discretion  superseded  by  the  minute  directions 
which  those  statutes  contain.  He  has  not  even  ministers,  because  the  other 
chief  officials  of  the  State  are  chosen,  not  by  himself,  but  by  popular  vote. 
He  has  very  little  patronage;  and  he  has  no  foreign  policy  at  all.  The  State 
legislature  would  therefore  prevail  against  him  in  everything,  were  it  not  for 
his  veto  and  for  the  fact  that  the  legislature  is  now  generally  restrained  (by 
the  provisions  of  the  State  Constitution)  from  passing  laws  on  many  topics. 


166 


THE  NATIONAL  GOVERNMENT 


PART  i 


may  weary  out  by  inflexible  patience,  may  overawe  by  winning 
tlie  admiration  of  the  masses,  always  disposed  to  rally  round  a 
striking  personality.  But  in  a  struggle  extending  over  a  long 
course  of  years  an  assembly  has  advantages  over  a  succession 
of  officers,  especially  of  elected  officers.  Men  come  and  go,  but 
an  assembly  goes  on  for  ever ;  it  is  immortal,  because  while 
the  members  change,  the  policy,  the  passion  for  extending  its 
authority,  the  tenacity  in  clinging  to  what  has  once  been 
gained,  remain  persistent.  A  weak  magistrate  comes  after  a 
strong  magistrate,  and  yields  what  his  predecessor  had  fought 
for ;  but  an  assembly  holds  all  it  has  ever  won.  Its  pressure 
is  steady  and  continuous;  it  is  always,  by  a  sort  of  natural 
process,  expanding  its  own  powers  and  devising  new  methods 
for  fettering  its  rival.  Thus  Congress,  though  it  is  no  more 
respected  or  loved  by  the  people  now  than  it  was  seventy 
years  ago,  and  has  developed  no  higher  capacity  for  promot¬ 
ing  the  best  interests  of  the  State,  has  succeeded  in  occupying 
nearly  all  the  ground  which  the  Constitution  left  debatable 
between  the  President  and  itself ;  and  would,  did  it  possess  a 
better  internal  organization,  be  even  more  plainly  than  it  now 
is  the  supreme  power  in  the  government. 

In  their  effort  to  establish  a  balance  of  power,  the  framers 
of  the  Constitution  so  far  succeeded  that  neither  power  has 
subjected  the  other.  But  they  underrated  the  inconveniences 
which  arise  from  the  disjunction  of  the  two  chief  organs  of 
government.  They  relieved  the  administration  from  a  duty 
which  European  ministers  find  exhausting  and  hard  to  reconcile 
with  the  proper  performance  of  administrative  work  —  the 
duty  of  giving  attendance  in  the  legislature  and  taking  the 
lead  in  its  debates.  They  secured  continuity  of  executive 
policy  for  four  years  at  least,  instead  of  leaving  government 
at  the  mercy  of  fluctuating  majorities  in  an  excitable  assembly. 
But  they  so  narrowed  the  sphere  of  the  executive  as  to  prevent 
it  from  leading  the  country,  or  even  its  own  party  in  the  coun¬ 
try.  They  sought  to  make  members  of  Congress  independent, 
but  in  doing  so  they  deprived  them  of  some  of  the  means 
which  European  legislators  enjoy  of  learning  how  to  adminis¬ 
ter,  of  learning  even  how  to  legislate  in  administrative  topics. 
They  condemned  them  to  be  architects  without  science,  critics 
without  experience,  censors  without  responsibility. 


CHAPTER  XXI 


THE  FEDERAL  COURTS 

When  in  1788  the  loosely  confederated  States  of  North 
America  united  themselves  into  a  nation,  National  tribunals 
were  felt  to  be  a  necessary  part  of  the  National  government. 
Under  the  Confederation  there  had  existed  no  means  of  enforc¬ 
ing  the  treaties  made  or  orders  issued  by  the  Congress,  because 
the  courts  of  the  several  States  owed  no  duty  to  that  feeble 
body,  and  had  little  will  to  aid  it.  Now  that  a  Federal  legis¬ 
lature  had  been  established,  whose  laws  were  to  bind  directly 
the  individual  citizen,  a  Eederal  judicature  was  evidently 
needed  to  interpret  and  apply  these  laws,  and  to  compel  obedi¬ 
ence  to  them.  The  alternative  would  have  been  to  entrust 
the  enforcement  of  the  laws  to  State  courts.  But  State  courts 
were  not  fitted  to  deal  with  matters  of  a  quasi-international 
character,  such  as  admiralty  jurisdiction  and  rights  arising 
under  treaties.  They  supplied  no  means  for  deciding  ques¬ 
tions  between  different  States.  They  could  not  be  trusted  to 
do  complete  justice  between  their  own  citizens  and  those  of 
another  State.  Being  under  the  control  of  their  own  State 
governments,  they  might  be  forced  to  disregard  any  Eederal 
law  which  the  State  disapproved;  or  even  if  they  admitted 
its  authority,  might  fail  in  the  zeal  or  the  power  to  give  due 
effect  to  it.  And  being  authorities  co-ordinate  with  and  inde¬ 
pendent  of  one  another,  with  no  common  court  of  appeal 
placed  over  them  to  correct  their  errors  or  harmonize  their 
views,  they  would  be  likely  to  interpret  the  Federal  Constitu¬ 
tion  and  statutes  in  different  senses,  and  make  the  law  uncer¬ 
tain  by  the  variety  of  their  decisions.  These  reasons  pointed 
imperatively  to  the  establishment  of  a  new  tribunal  or  set  of 
tribunals,  altogether  detached  from  the  States,  as  part  of  the 
machinery  of  the  new  government.  Side  by  side  of  the  thir* 

‘  167 


168 


THE  NATIONAL  GOVERNMENT 


PART  l 


teen  (now  forty-five)  different  sets  of  State  courts,  whose 
jurisdiction  under  State  laws  and  between  their  own  citizens 
was  left  untouched,  there  arose  a  new  and  complex  system 
of  Federal  courts.  The  Constitution  drew  the  outlines  of  the 
system.  Congress  perfected  it  by  statutes  ;  and  as  the  details 
rest  upon  these  statutes,  Congress  retains  the  power  of  altering 
them.  Few  American  institutions  are  better  worth  studying 
than  this  intricate  judicial  machinery :  few  deserve  more  ad¬ 
miration  for  the  smoothness  of  their  working :  few  have  more 
contributed  to  the  peace  and  well-being  of  the  country. 

The  Federal  courts  fall  into  three  classes :  — 

The  Supreme  Court,  which  sits  at  Washington. 

The  Circuit  courts. 

The  District  courts. 

The  Supreme  Court  is  directly  created  by  Art.  iii.  §  1  of  the 
Constitution,  but  with  no  provision  as  to  the  number  of  its 
judges.  Originally  there  were  six;  at  present  there  are  nine, 
a  chief  justice,  with  a  salary  of  $10,500,  and  eight  associate 
justices  (salary  $10,000).  The  justices  are  nominated  by  the 
President  and  confirmed  by  the  Senate.  They  hold  office 
during  good  behaviour,  i.e.  are  removable  only  by  impeach¬ 
ment  ;  and  have  thus  a  tenure  even  more  secure  than  that  of 
English  judges,  for  the  latter  may  be  removed  by  the  Crown 
on  an  address  from  both  Houses  of  Parliament.  Moreover, 
the  English  statutes  secure  the  permanence  only  of  the  judges 
of  the  Supreme  Court  of  judicature,  not  also  of  judges  of 
county  or  other  local  courts,  while  the  provisions  of  the  Amer¬ 
ican  Constitution  are  held  to  apply  to  the  inferior  as  well  as 
the  superior  Federal  judges.1  The  Fathers  of  the  Constitu¬ 
tion  were  extremely  anxious  to  secure  the  independence  of 
their  judiciary,  regarding  it  as  a  bulwark  both  for  the  people 
and  for  the  States  against  aggressions  of  either  Congress  or 
the  President.2  They  affirmed  the  life  tenure  by  an  unani- 


1  The  United  States  judges  in  the  Territories  stand  on  a  different  footing. 

2  See  Hamilton  in  Federalist ,  No.  lxxviii. :  “  The  standard  of  good  behav¬ 
iour  for  the  continuance  in  office  of  the  judicial  magistracy  is  certainly  one 
of  the  most  valuable  of  the  modern  improvements  in  the  practice  of  govern¬ 
ment.  In  a  monarchy  it  is  an  excellent  barrier  to  the  despotism  of  the  prince ; 
in  a  republic  it  is  a  no  less  excellent  barrier  to  the  encroachments  and  oppres¬ 
sions  of  the  legislative  body.” 


CHAP.  XXI 


THE  FEDERAL  COURTS 


16& 


mous  vote  in  the  Convention  of  1787,  because  they  deemed  the 
risk  of  the  continuance  in  office  of  an  incompetent  judge  a  less 
evil  than  the  subserviency  of  all  judges  to  the  legislature, 
which  might  flow  from  a  tenure  dependent  on  legislative  will. 
The  result  has  justified  their  expectations.  The  judges  have 
shown  themselves  independent  of  Congress-  and  of  party,  yet 
the  security  of  their  position  has  rarely  tempted  them  to 
breaches  of  judicial  duty.  Impeachment  has  been  four  times 
resorted  to,  once  only  against  a  justice  of  the  Supreme  Court 
and  then  unsuccessfully.1  Attempts  have  been  made,  begin¬ 
ning  from  Jefferson,  who  argued  that  judges  should  hold 
office  for  terms  of  four  or  six  years  only,  to  alter  the  tenure 
of  the  Federal  judges,  as  that  of  the  State  judges  has  been 
altered  in  most  States ;  but  Congress  has  always  rejected  the 
proposed  constitutional  amendment. 

The  Supreme  Court  sits  at  Washington  from  October  till 
July  in  every  year.  The  presence  of  six  judges  is  required 
to  pronounce  a  decision,  a  rule  which,  by  preventing  the  divi¬ 
sion  of  the  court  into  two  or  more  branches,  retards  the  de¬ 
spatch  of  business,  though  it  has  the  advantage  of  securing 
a  thorough  consideration  of  every  case.  The  sittings  are  held 
in  the  Capitol,  in  the  chamber  formerly  occupied  by  the  Senate, 
and  the  justices  wear  black  gowns,  being  not  merely  the  only 
public  officers,  but  almost  the  only  non-ecclesiastical  persons 
of  any  kind  whatever  within  the  bounds  of  the  United  States 
who  use  any  official  dress.2  Every  case  is  discussed  by  the  whole 
body  twice  over,  once  to  ascertain  the  opinion  of  the  majority, 
which  is  then  directed  to  be  set  forth  in  a  written  judgment ; 
then  again  when  that  written  judgment,  which  one  of  the 
judges  has  prepared,  is  submitted  for  criticism  and  adoption 
as  the  judgment  of  the  court. 

The  Circuit  courts  have  been  created  by  Congress  under 
a  power  in  the  Constitution  to  establish  “  inferior  courts.” 

1  This  was  Samuel  Chase  of  Maryland  in  1804-5.  The  other  cases  were  of 
district  Federal  judges.  Two  were  convicted  (one  of  violence,  apparently  due 
to  drunkenness  or  insanity,  the  other  of  rebellion),  the  third  was  acquitted. 

2  Save  that  in  some  universities  the  president  and  professors,  and  (more 
rarely)  the  graduates,  wear  academic  gowns  on  great  occasions,  such  as  the 
annual  Commencement,  and  that  gowns  are  worn  by  the  judges  in  Federal 
Circuit  courts  and  by  the  judges  of  the  New  York  Court  of  Appeals.. 


170 


THE  NATIONAL  GOVERNMENT 


PART  i 


There  are  at  present  nine  judicial  circuits,  in  which  courts  are 
held  annually.  Each  of  these  has  two  Circuit  judges  (salary 
$6000),  and  to  each  there  is  also  allotted  one  of  the  justices  ot 
the  Supreme  Court.  The  Circuit  court  may  be  held  either  by  a 
Circuit  judge  alone,  or  by  the  Supreme  Court  Circuit  justice 
alone,  or  by  both  together,  or  by  either  sitting  along  with  the 
District  judge  (hereafter  mentioned)  of  the  district  wherein 
the  particular  Circuit  court  is  held,  or  by  the  District  judge 
alone.  A  statute  of  1891  has  established  Circuit  Courts  of 
Appeals,  to  which  cases  may  be  brought  from  District  or  Cir¬ 
cuit  courts,  a  further  appeal  lying,  in  some  classes  of  cases,  to 
the  Supreme  Court,  to  which,  moreover,  in  certain  cases,  a  di¬ 
rect  appeal  from  the  District  or  Circuit  courts  may  still  be 
brought.  It  is  hoped  that  these  new  courts  will  relieve  the 
Supreme  Court  of  some  of  its  now  too  heavy  business. 

The  District  courts  are  the  third  and  lowest  class  of  Federa. 
tribunals.  They  are  at  present  fifty-five  in  number,  and  their 
judges  receive  salaries  of  $5000  per  annum.  The  Constitution 
does  not  expressly  state  whether  they  and  the  Circuit  judges 
are  to  be  appointed  by  the  President  and  Senate  like  the  mem¬ 
bers  of  the  Supreme  Court ;  but  it  has  always  been  assumed 
that  such  was  the  intention,  and  the  appointments  are  so  mac  e 

accordingly. 

For  the  purpose  of  dealing  with  the  claims  of  private  per¬ 
sons  against  the  Federal  government  there  has  been  estab¬ 
lished  in  Washington  a  special  tribunal  called  the  Court  ot 
Claims,  with  five  justices  (salary  $4500),  from  which  an  appeal 

lies  direct  to  the  Supreme  Court. 

The  jurisdiction  of  the  Federal  courts  extends  to  the  follow¬ 
ing  classes  of  cases,  on  each  of  which  I  say  no  more  than  what 
seems  absolutely  necessary  to  explain  their  nature.1  All  other 
cases  have  been  left  to  the  State  courts,  from  which  there  does 


i  “  All  the  enumerated  cases  of  Federal  cognizance  are  those  which  touch 
the  safety,  peace,  and  sovereignty  of  the  nation,  or  which  presume  that  State 
agents,  State  prejudices,  State  jealousies,  and  State  mt eres  its m .gi  t 
sometimes  obstruct  or  control  the  regular  administration  of  justice.  I  e 
appellate  power  in  all  these  cases  is  founded  on  the  clearest  principles  of 
policy  and  wisdom,  and  is  necessary  in  order  to  preserve  uniformity  of  de 
sion  upon  all  subjects  within  the  purview  of  the  Constitution.  Kent  s  Com* 
mentaries  (Holmes’  edition),  vol.  i.  p.  320. 


CHAP.  XXI 


THE  FEDERAL  COURTS 


171 


not  lie  (save  as  hereinafter  specified)  any  appeal  to  the  Fed¬ 
eral  courts. 

1.  “  Cases  in  law  and  equity  arising  under  the  Constitution, 
the  laws  of  the  United  States,  and  treaties  made  under  their 
authority.” 

In  order  to  enforce  the  supremacy  of  the  National  Constitu¬ 
tion  and  laws  over  all  State  laws,  it  was  necessary  to  place 
the  former  under  the  guardianship  of  the  National  judiciary. 
This  provision  accordingly  brings  before  a  Federal  court  every 
cause  in  which  either  party  to  a  suit  relies  upon  any  Federal 
enactment.  It  entitles  a  plaintiff  who  bases  his  case  on  a  Fed¬ 
eral  statute  to  bring  his  action  in  a  Federal  court :  it  entitles 
a  defendant  who  rests  his  defence  on  a  Federal  enactment  to 
have  the  action,  if  originally  brought  in  a  State  court,  removed 
to  a  Federal  court.1  But,  of  course,  if  the  action  has  origi¬ 
nally  been  brought  in  a  State  court,  there  is  no  reason  for  re¬ 
moving  it  unless  the  authority  of  the  Federal  enactment  can 
be  supposed  to  be  questioned. 

Accordingly,  the  rule  laid  down  by  the  Judiciary  Act  (1789) 
provides  “  for  the  removal  to  the  Supreme  Court  of  the  United 
States  of  the  final  judgment  or  decree  in  any  suit,  rendered  in 
the  highest  court  of  law  or  equity  of  a  State  in  which  a  deci¬ 
sion  could  be  had,  in  which  is  drawn  in  question  the  validity 
of  a  treaty  or  statute  of,  or  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  their  validity ;  or 
where  is  drawn  in  question  the  validity  of  a  statute  of,  or  an 
authority  exercised  under,  any  State,  on  the  ground  of  their 
being  repugnant  to  the  Constitution,  treaties,  or  laws  of  the 
United  States,  and  the  decision  is  in  favour  of  their  validity; 
or  where  any  title,  right,  privilege,  or  immunity  is  claimed 
under  the  Constitution,  or  any  treaty  or  statute  or  a  commis¬ 
sion  held  or  authority  exercised  under  the  United  States, 
and  the  decision  is  against  the  title,  right,  privilege,  or  immu¬ 
nity  specially  set  up  or  claimed  by  either  party  under  such 
Constitution,  treaty,  statute,  commission,  or  authority.  But 
to  authorize  the  removal  under  that  act,  it  must  appear  by  the 
record,  either  expressly  or  by  clear  and  necessary  intendment, 

» 

1  The  removal  may  be  before  or  after  judgment  given,  and  in  the  lattei 
event,  by  way  of  appeal  or  by  writ  of  error. 


172 


THE  NATIONAL  GOVERNMENT 


PART  I 


that  some  one  of  the  enumerated  questions  did  arise  in  the 
State  court,  and  was  there  passed  upon.  It  is  not  sufficient 
that  it  might  have  arisen  or  been  applicable.  And  if  the  de¬ 
cision  of  the  State  court  is  in  favour  of  the  right,  title,  privi¬ 
lege,  or  exemption  so  claimed,  the  Judiciary  Act  does  not  au¬ 
thorize  such  removal,  neither  does  it  where  the  validity  of  the 
State  law  is  drawn  in  question,  and  the  decision  of  the  State 
court  is  against  its  validity.”  1 

The  rule  seems  intricate,  but  the  motive  for  it  and  the  work¬ 
ing  of  it  are  plain.  Where  in  any  legal  proceeding  a  Federal 
enactment  has  to  be  construed  or  applied  by  a  State  court,  if 
the  latter  supports  the  Federal  enactment,  i.e.  considers  it  to 
govern  the  case,  and  applies  it  accordingly,  the  supremacy  of 
Federal  law  is  thereby  recognized  and  admitted.  There  is 
therefore  no  reason  for  removing  the  case  to  a  Federal  tri¬ 
bunal.  Such  a  tribunal  could  do  no  more  to  vindicate  Federal 
authority  than  the  State  court  has  already  done.  But  if  the 
decision  of  the  State  court  has  been  against  the  applicability 
of  the  Federal  law,  it  is  only  fair  that  the  party  who  suffers 
by  the  decision  should  be  entitled  to  Federal  determination  of 
the  point,  and  he  has  accordingly  an  absolute  right  to  carry  it 
before  the  Supreme  Court. 

The  principle  of  this  rule  is  applied  even  to  executive  acts 
of  the  Federal  authorities.  If,  for  instance,  a  person  has  been 
arrested  by  a  Federal  officer,  a  State  court  has  no  jurisdiction 
to  release  him  on  a  writ  of  habeas  corpus,  or  otherwise  to 
inquire  into  the  lawfulness  of  his  detention  by  Federal  author¬ 
ity,  because,  as  was  said  by  Chief-Justice  Taney,  “The  powers 
of  the  general  government  and  of  the  State,  although  both 
exist  and  are  exercised  within  the  same  territorial  limits,  are 
yet  separate  and  distinct  sovereignties,  acting  separately  and 
independently  of  each  other,  within  their  respective  spheres. 
And  the  sphere  of  action  appropriated  to  the  United  States  is 
as  far  beyond  the  reach  of  the  judicial  process  issued  by  a 
State  court  as  if  the  line  of  division  was  traced  by  landmarks 
and  monuments  visible  to  the  eye.” 2 

1  Cooley,  Constitutional  Limitations,  p.  16.  For  details  regarding  the 
removal  of  suits,  and  the  restrictions  when  the  amount  in  dispute  is  small, 
see  Cooley,  Principles  of  Constitutional  Law,  p.  122  sqq.;  and  see  also  the 
Act  of  3d  March  1887. 

2  Ableman  v.  Booth,  21  How.  516. 


CHAP.  XXI 


THE  FEDERAL  COURTS 


173 


2.  “  Cases  affecting  ambassadors,  other  public  ministers,  and 
consuls.” 

As  these  persons  have  an  international  character,  it  would 
be  improper  to  allow  them  to  be  dealt  with  by  a  State  court 
which  has  nothing  to  do  with  the  National  government,  and 
for  whose  learning  and  respectability  there  may  exist  no  such 
securities  as  those  that  surround  the  Federal  courts. 

3.  “  Cases  of  admiralty  and  maritime  jurisdiction.” 

These  are  deemed  to  include  not  only  prize  cases  but  all 
maritime  contracts,  and  all  transactions  relating  to  navigation, 
as  well  on  the  navigable  lakes  and  rivers  of  the  United  States 
as  on  the  high  seas. 

4.  “  Controversies  to  which  the  United  States  shall  be  a 
party.” 

This  provision  is  obviously  needed  to  protect  the  United 
States  from  being  obliged  to  sue  or  be  sued  in  a  State  court,  to 
whose  decision  the  National  government  could  not  be  expected 
to  submit.  When  a  pecuniary  claim  is  sought  to  be  estab¬ 
lished  against  the  Federal  government,  the  proper  tribunal  is 
the  Court  of  Claims. 

5.  “  Controversies  between  two  or  more  States,  between  a 
State  and  citizens  of  another  State,  between  citizens  of  dif¬ 
ferent  States,  between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  and  between  a  State 
or  the  citizens  thereof,  and  foreign  States,  citizens,  or  sub¬ 
jects.” 

In  all  these  cases  a  State  court  is  likely  to  be,  or  at  any  rate 
to  seem,  a  partial  tribunal,  and  it  is  therefore  desirable  to  vest 
the  jurisdiction  in  judges  equally  unconnected  with  the  plain¬ 
tiff  and  the  defendant.  By  securing  recourse  to  an  unbiassed 
and  competent  tribunal,  the  citizens  of  every  State  obtain  better 
commercial  facilities  than  they  could  otherwise  count  upon, 
for  their  credit  will  stand  higher  with  persons  belonging  to 
other  States  if  the  latter  know  that  their  legal  rights  are  under 
the  protection,  not  of  local  and  possibly  prejudiced  judges,  but 
of  magistrates  named  by  the  National  government,  and  un¬ 
amenable  to  local  influences. 

One  important  part  of  the  jurisdiction  here  conveyed  has 
been  subsequently  withdrawn  from  the  Federal  judicature. 
When  the  Constitution  was  submitted  to  the  people,  a  princi* 


174 


THE  NATIONAL  GOVERNMENT 


PART  i 


pal  objection  urged  against  it  was  that  it  exposed  a  State, 
although  a  sovereign  commonwealth,  to  be  sued  by  the  individ' 
nal  citizens  of  some  other  State.  That  one  State  should  sue 
another  was  perhaps  necessary,  for  what  other  way  could  be 
discovered  of  terminating  disputes  ?  But  the  power  as  wel  as 
the  dignity  of  a  State  would  be  gone  if  it  could  be  dragged 
into  court  by  a  private  plaintiff.  Hamilton  (writing  m  the 
Federalist)  met  the  objection  by  arguing  that  the  jurisdiction¬ 
giving  clause  of  the  Constitution  ought  not  to  be  so  construed, 
but  must  be  read  as  being  subject  to  the  general  doctrine  that 
a  sovereign  body  cannot  be  sued  by  an  individual  without  its 
own  consent,  a  doctrine  not  to  be  excluded  by  mere  implication 
but  only  by  express  words.1 2 3  However,  in  1793,  the  Supreme 
Court,  in  the  famous  case  of  Chisholm  v.  The  State  of.  Geoigia, 
construed  the  Constitution  in  the  very  sense  which  Hamilton 
had  denied,  holding  that  an  action  did  lie  against  Georgia  at 
the  suit  of  a  private  plaintiff ;  and  when  Georgia  protested  and 
refused  to  appear,  the  court  proceeded  (in  1794)  to  give  judg¬ 
ment  against  her  by  default  in  case  she  should  not  appear  and 
plead  before  a  day  fixed.  Her  cries  of  rage  filled  the  Union, 
and  brought  other  States  to  her  help.  An  amendment  (the 
eleventh)  to  the  Constitution  was  passed  through  Congress  and 
duly  accepted  by  the  requisite  majority  of  the  States,  which 
declares  that  “  the  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  commenced  or  prose¬ 
cuted  against  one  of  the  United  States  by  citizens  of  another 
State  or  by  citizens  or  subjects  of  any  foreign  state.”  ®  Under 
the  protection  of  this  amendment,  several  have  with  impunity 

repudiated  their  debts.  >  .  . 

The  jurisdiction  of  the  Supreme  Court  is  original  m  cases 
affecting  ambassadors,  and  wherever  a  State  is  a  party;  in 


1  Federalist ,  No.  lxxxi.  The  same  view  was  contemporaneously  maintained 
by  John  Marshall  (afterwards  Chief-Justice)  in  the  Virginia  Convention  of 

1788. 

2  2  Dali.  419. 

3  It  has  been  held  that  the  amendment  applies  only  when  a  State  is  a  party 
to  the  record,  and  therefore  does  not  apply  to  the  case  of  a  State  10  ing 
shares  in  a  corporation.  Neither  does  it  apply  to  appeals  and  w iits o  enor. 

Very  recently  (March  1892)  the  Supreme  Court  have  decided  (by  a  large 
majority)  in  the  case  of  United  States  v.  Texas  that  the  United  States  can 

sue  a  State. 


CHAP.  XXI 


THE  FEDERAL  COURTS 


175 


other  cases  it  is  appellate ;  that  is,  cases  may  be  brought  to  it 
from  the  inferior  Federal  courts  and  (under  the  circumstances 
before  mentioned)  from  State  coufts.  The  jurisdiction  is  in 
some  matters  exclusive,  in  others  concurrent  with  that  of  the 
State  courts.  Upon  these  subjects  there  have  arisen  many 
difficult  and  intricate  questions,  which  I  must  pass  by,  because 
they  would  be  unintelligible  without  long  explanations.  ’ 

One  point,  however,  may  be  noted.  The  State  courts  can¬ 
not  be  invested  by  Congress  with  any  jurisdiction,  for  Con¬ 
gress  has  no  authority  over  them,  and  is  not  permitted  by  the 
Constitution  to  delegate  any  judicial  powers  to  them.  Hence 
the  jurisdiction  of  a  State  court,  wherever  it  is  concurrent 
with  that  of  Federal  judges,  is  a  jurisdiction  which  the  court 
possesses  of  its  own  right,  independent  of  the  Constitution. 
And  in  some  instances  where  congressional  statutes  have  pur¬ 
ported  to  impose  duties  on  State  courts,  the  latter  have  refused 
to  accept  and  discharge  them. 

The  criminal  jurisdiction  of  the  Federal  courts,  which  ex¬ 
tends  to  all  offences  against  Federal  law,  is  purely  statutory. 
“The  United  States  as  such  can  have  no  common  law.  It 
derives  its  powers  from  the  grant  of  the  people  made  by  the 
Constitution,  and  they  are  all  to  be  found  in  the  written  law, 
and  not  elsewhere.”  1 

The  procedure  of  the  Federal  courts  is  prescribed  by  Con¬ 
gress,  subject  to  some  few  rules  contained  in  the  Constitution, 
such  as  those  which  preserve  the  right  of  trial  by  jury  in 
criminal  cases  2  and  suits  at  common  law.3  As  “  cases  in  law 
and  equity  ”  are  mentioned,  it  is  held  that  Congress  could  not 
accomplish  such  a  fusion  of  law  and  equity  as  has  been  effected 
in  several  States  of  the  Union,  and  was  effected  in  England  in 
1873,  but  must  maintain  these  methods  of  procedure  as  distinct, 
though  administered  by  the  same  judges. 

The  law  applied  in  the  Federal  courts  is  of  course  first  and 
foremost  that  enacted  by  the  Federal  legislature,  which,  when 
it  is  applicable,  prevails  against  any  State  law.  But  very  often, 
as  for  instance  in  suits  between  citizens  of  different  States, 
Federal  law  does  not,  or  does  only  in  a  secondary  way,  come 
in  question.  In  such  instances  the  first  thing  is  to  determine 


1  Cooley,  Principles,  p.  131. 


2  Art.  iii.  §  2. 


3  Amendment  vii.  §  1. 


176 


/ 

THE  NATIONAL  GOVERNMENT 


PART  I 


what  law  it  is  that  ought  to  govern  the  case,  each  State  having 
a  law  of  its  own ;  and  when  this  has  been  ascertained,  it  is 
applied  to  the  facts,  just  &s  an  English  court  would  apply 
French  or  Scotch  law  in  pronouncing  on  the  validity  of  a  mar¬ 
riage  contracted  in  France  or  Scotland.  In  administering  the 
law  of  any  State  (including  its  Constitution,  its  statutes,  and 
its  coihmon  law,  which  in  Louisiana  is  the  civil  law  in  its 
French  form)  the  Federal  courts  ought  to  follow  the  decisions 
of  the  State  courts,  treating  those  decisions  as  the  highest  au¬ 
thority  on  the  law  of  the  particular  State.  This  doctrine  is  so 
fully  applied  that  the  Supreme  Court  has  even  overruled  its 
own  previous  determinations  on  a  point  of  State  law  in  order 
to  bring  itself  into  agreement  with  the  view  of  the  highest 
court  of  the  particular  State.  Needless  to  say,  the  State 
courts  follow  the  decisions  of  the  Federal  courts  upon  questions 
of  Federal  law.1 

For  the  execution  of  its  powers  each  Federal  court  has 
attached  to  it  an  officer  called  the  United  States  marshal,  cor¬ 
responding  to  the  sheriff  in  the  State  governments,  whose  duty 
it  is  to  carry  out  its  writs,  judgments,  and  orders  by  arresting 
prisoners,  levying  execution,  putting  persons  in  possession,  and 
so  forth.  He  is  entitled,  if  resisted,  to  call  on  all  good  citizens 
for  help ;  if  they  will  not  or  cannot  render  it,  he  must  refer  to 
Washington  and  obtain  the  aid  of  Federal  troops. 

There  exists  also  in  every  judiciary  district  a  Federal  public 
prosecutor,  called  the  United  States  district  attorney,  who 
institutes  proceedings  against  persons  transgressing  Federal 
laws  or  evading  the  discharge  of  obligations  to  the  Federal 
treasury.  Both  sets  of  officials  are  under  the  direction  of  the 
attorney  general,  as  head  of  the  department  of  justice.  They 
constitute  a  net-work  of  Federal  authorities  covering  the  whole 
territory  of  the  Union,  and  independent  of  the  officers  of  the 
State  courts  and  of  the  public  prosecutors  who  represent  the 

i“The  judicial  department  of  every  government  is  the  appropriate  organ 
for  construing  the  legislative  acts  of  that  government.  ...  On  this  principle 
the  construction  given  by  this  (the  Supreme)  Court  to  the  Constitution  and 
laws  of  the  United  States  is  received  hy  all  as  the  true  construction;  and  on 
the  same  principle  the  construction  given  by  the  courts  of  the  various  States  to 
the  legislative  acts  of  those  States  is  received  as  true,  unless  they  come  in  con¬ 
flict  with  the  Constitution,  laws,  or  treaties  of  the  United  States.”  —  Marshall, 
Chief-Justice,  in  Elmendorf  v.  Taijlor,  10  Wheat.  109. 


CHAP.  XXI 


THE  FEDERAL  COURTS 


177 


State  governments.  Where  a  State  maintains  a  gaol  for 
the  reception  of  Federal  prisoners,  the  U.  S.  marshal  delivers 
his  prisoners  to  the  State  gaoler ;  where  this  provision  is  want¬ 
ing  he  must  himself  arrange  for  their  custody. 

The  system  described  in  this  chapter  is  complex,  for  under 
it  every  yard  of  ground  in  the  Union  is  covered  by  two  juris¬ 
dictions,  with  two  sets  of  judges  and  two  sets  of  officers,  re¬ 
sponsible  to  different  superiors,  their  spheres  of  action  divided 
only  by  an  ideal  line,  and  their  action  liable  in  practice  to 
clash.  Neveitheless  it  works,  and  now,  after  a  hundred  years 
of  experience,  works  smoothly.  And  it  leads  to  few  conflicts 
or  heart-burnings,  because  the  key  to  all  difficulties  is  found  in 
the  principle  that  wherever  Federal  law  is  applicable  Federal 
law  must  prevail,  and  that  every  suitor  who  contends  that 
Federal  law  is  applicable  is  entitled  to  have  the  point  deter¬ 
mined  by  a  Federal  court.  The  acumen  of  the  lawyers  and 
judges,  the  wealth  of  accumulated  precedents,  make  the  solu¬ 
tion  of  these  questions  of  applicability  and  jurisdiction  easier 
than  a  European  practitioner  can  realize :  while  the  law-abid- 
ing  habits  of  the  people  and  their  sense  that  the  supremacy 
of  Federal  law  and  jurisdiction  works  to  the  common  benefit 
of  the  whole  people,  secure  general  obedience  to  Federal  judg¬ 
ments.  The  enforcement  of  the  law,  especially  the  criminal 
law,  in  some  parts  of  America  leaves  much  to  be  desired;  but 
the  difficulties  which  arise  are  now  due  not  to  conflicts  between 
State  and  Federal  pretensions  but  to  other  tendencies  equally 
hostile  to  both  authorities. 


CHAPTER  XXII 

THE  COURTS  AND  THE  CONSTITUTION 

No  feature  in  the  government  of  the  United  States  has 
awakened  so  much  curiosity  in  the  European  mind,  caused  so 
much  discussion,  received  so  much  admiration,  and  been  more 
frequently  misunderstood,  than  the  duties  assigned  to  the 
Supreme  Court  and  the  functions  which  it  discharges  in  guard¬ 
ing  the  ark  of  the  Constitution.  Yet  there  is  really  no  mystery 
about  the  matter.  It  is  not  a  novel  device.  It  is  not  a  com¬ 
plicated  device.  It  is  the  simplest  thing  in  the  world  if  ap¬ 
proached  from  the  right  side. 

In  England  and  many  other  modern  States  there  is  no  differ¬ 
ence  in  authority  between  one  statute  and  another.  All  aie 
made  by  the  legislature :  all  can  be  changed  by  the  legislature. 
What  are  called  in  England  constitutional  statutes,  such  as 
Magna  Charta,  the  Bill  of  Rights,  the  Act  of  Settlement,  the 
Acts  of  Union  with  Scotland  and  Ireland,  are  merely  ordinary 
laws,  which  could  be  repealed  by  Parliament  at  any  moment  in 
exactly  the  same  way  as  it  can  repeal  a  highway  act  or  lower 
the  duty  on  tobacco.  The  habit  has  grown  up  of  talking  of 
the  British  Constitution  as  if  it  were  a  fixed  and  definite  thing. 
But  there  is  in  England  no  such  thing  as  a  Constitution  apart 
from  the  rest  of  the  law :  there  is  merely  a  mass  of  law,  con¬ 
sisting  partly  of  statutes  and  partly  of  decided  cases  and  ac¬ 
cepted  usages,  in  conformity  with  which  the  government  of 
the  country  is  carried  on  from  day  to  day,  but  which  is  being 
constantly  modified  by  fresh  statutes  and  cases.  The  same 
thing  existed  in  ancient  Rome,  and  everywhere  in  Europe  a 
century  ago.  It  is,  so  to  speak,  the  il  natural,  and  used  to  be 
the  normal,  condition  of  things  in  all  countries,  free  or  des¬ 
potic. 

The  condition  of  America  is  wholly  different.  There  the 
name  Constitution  designates  a  particular  instrument  adopted 

178 


chap,  xxii  THE  COURTS  AND  THE  CONSTITUTION 


179 


in  1788,  amended  in  some  points  since,  which,  is  the  foundation 
of  the  National  government.  This  Constitution  was  ratified 
and  made  binding,  not  by  Congress,  but  by  the  people  acting 
through  conventions  assembled  in  the  thirteen  States  which 
then  composed  the  Confederation.  It  created  a  legislature  of 
two  Houses ;  but  that  legislature,  which  we  call  Congress,  has 
no  power  to  alter  it  in  the  smallest  particular.  That  which 
the  people  have  enacted,  the  people  only  can  alter  or  repeal. 

Here  therefore  we  observe  two  capital  differences  between 
England  and  the  United  States.  The  former  has  left  the  out¬ 
lines  as  well  as  the  details  of  her  system  of  government  to  be 
gathered  from  a  multitude  of  statutes  and  cases.  The  latter 
has  drawn  them  out  in  one  comprehensive  fundamental  enact¬ 
ment.  The  former  has  placed  these  so-called  constitutional 
laws  at  the  mercy  of  her  legislature,  which  can  abolish  when 
it  pleases  any  institution  of  the  country,  the  Crown,  the  House 
of  Lords,  the  Established  Church,  the  House  of  Commons, 
Parliament  itself.1  The  latter  has  placed  her  Constitution 
altogether  out  of  the  reach  of  Congress,  providing  a  method  of 
amendment  whose  difficulty  is  shown  by  the  fact  that  it  has 
been  very  sparingly  used. 

In  England  Parliament  is  omnipotent.  In  America  Congress 
is  doubly  restricted.  It  can  make  laws  only  for  certain  pur¬ 
poses  specified  in  the  Constitution,  and  in  legislating  for  these 
purposes  it  must  not  transgress  any  provision  of  the  Constitu¬ 
tion  itself.  The  stream  cannot  rise  above  its  source. 

Suppose,  however,  that  Congress  does  so  transgress,  or  does 
overpass  the  specified  purposes.  It  may  do  so  intentionally  : 
it  is  likely  to  do  so  inadvertently.  What  happens  ?  If  the 
Constitution  is  to  be  respected,  there  must  be  some  means  of 
securing  it  against  Congress.  If  a  usurpation  of  power  is  at- 


1  Parliament  of  course  cannot  restrict  its  own  powers  by  any  particular  act 
because  that  act  might  be  repealed  in  a  subsequent  session,  and  indeed  any 
subsequent  Act  inconsistent  with  any  of  its  provisions  repeals  ipso  facto  that 
provision.  (For  instance,  the  Act  of  Union  with  Scotland  (6  Anne,  c.  11) 
declared  certain  provisions  of  the  Union,  for  the  establishment  of  Presbyterian 
church  government  in  Scotland,  to  be  “  essential  and  fundamental  parts  of  the 
Union,”  but  some  of  those  provisions  have  been  altered  by  subsequent  stat* 
utes.)  Parliament  could,  however,  extinguish  itself  by  formally  dissolving 
itself,  leaving  no  legal  means  whereby  a  subsequent  Parliament  could  be 
summoned. 


180 


THE  NATIONAL  GOVERNMENT 


PART  I 


tempted,  how  is  it  to  be  checked  ?  If  a  mistake  is  committed, 
who  sets  it  right  ? 

The  interpretation  of  laws  belongs  to  courts  of  justice.  A 
law  implies  a  tribunal,  not  only  in  order  to  direct  its  enforce¬ 
ment  against  individuals,  but  to  adjust  it  to  the  facts,  i.e.  to 
determine  its  precise  meaning  and  apply  that  meaning  to  the 
circumstances  of  the  particular  case.  The  legislature,  which 
can  only  speak  generally,  makes  every  law  in  reliance  on  this 
power  of  interpretation.  It  is  therefore  obvious  that  the 
question,  whether  a  congressional  statute  offends  against  the 
Constitution,  must  be  determined  by  the  courts,  not  merely 
because  it  is  a  question  of  legal  construction,  but  because  there 
is  nobody  else  to  determine  it.  Congress  cannot  do  so,  because 
Congress  is  a  party  interested.  If  such  a  body  as  Congress 
were  permitted  to  decide  whether  the  acts  it  had  passed  weie 
constitutional,  it  would  of  course  decide  in  its  own  favour,  and 
to  allow  it  to  decide  would  be  to  put  the  Constitution  at  its 
mercy.  The  President  cannot,  because  he  is  not  a  lawyer,  and 
he  also  may  be  personally  interested.  There  remain  only  the 
courts,  and  these  must  be  the  National  or  Federal  courts,  be¬ 
cause  no  other  courts  can  be  relied  on  in  such  cases.  So  far 
again  there  is  no  mystery  about  the  matter. 

The  United  States  is  a  federation  of  commonwealths,  each 
of  which  has  its  own  Constitution  and  laws.  The  Federal 
Constitution  not  only  gives  certain  powers  to  Congress,  as  the 
National  legislature,  but  recognizes  certain  powers  in  the  States, 
in  virtue  whereof  their  respective  peoples  have  enacted  funda¬ 
mental  State  laws  (the  State  Constitutions)  and  have  enabled 
their  respective  legislatures  to  pass  State  statutes.  However, 
as  the  nation  takes  precedence  of  the  States,  the  Federal  Con¬ 
stitution,  which  is  the  supreme  law  of  the  land  everywhere, 
and  the  statutes  duly  made  by  Congress  under  it,  are  preferred 
to  all  State  Constitutions  and  statutes  ;  and  if  any  conflict  arise 
between  them,  the  latter  must  give  way.  The  same  phenom¬ 
enon  therefore  occurs  as  in  the  case  of  an  inconsistency  between 
the  Constitution  and  a  congressional  statute.  Where  it  is 
shown  that  a  State  Constitution  or  statute  infringes  either  the 
Federal  Constitution  or  a  Federal  (i.e.  congressional)  statute, 
the  State  Constitution  or  statute  must  be  declared  invalid. 
And  this  declaration  must,  of  course,  proceed  from  the  courts, 


chap,  xxii  THE  COURTS  AND  THE  CONSTITUTION 


181 


nor  solely  from  the  Federal  courts  ;  because  when  a  State  court 
decides  against  its  own  statutes  or  Constitution  in  favour  of  a 
Federal  law,  its  decision  is  final. 

It  will  be  observed  that  in  all  this  there  is  no  conflict  be¬ 
tween  the  law  courts  and  any  legislative  body.  The  conflict  is 
between  different  kinds  of  laws.  The  duty  of  the  judges  is 
as  strictly  confined  to  the  interpretation  of  the  laws  cited  to 
them  as  it  is  in  England  or  France ;  and  the  only  difference 
is  that  in  America  there  are  laws  of  four  different  degrees  of 
authority,  whereas  in  England  all  laws  (excluding  mere  by¬ 
laws,  Privy  Council  ordinances,  etc.)  are  equal  because  all  pro¬ 
ceed  from  Parliament.  These  four  kinds  of  American  laws 
are :  — 

I.  The  Federal  Constitution. 

II.  Federal  statutes. 

III.  State  Constitutions. 

IY.  State  statutes.1 

The  American  law  court  therefore  does  not  itself  enter  on 
any  conflict  with  the  legislature.  It  merely  secures  to  each 
kind  of  law  its  due  authority.  It  does  not  even  preside  over 
a  conflict  and  decide  it,  for  the  relative  strength  of  each  kind 
of  law  has  been  settled  already.  All  the  court  does  is  to 
declare  that  a  conflict  exists  between  two  laws  of  different 
degrees  of  authority.  Then  the  question  is  at  an  end,  for  the 
weaker  law  is  extinct,  or,  to  put  the  point  more  exactly,  a  flaw 
has  been  indicated  which  makes  the  world  see  that  if  the  view 
of  the  court  be  correct,  the  law  is  in  fact  null.  The  court 
decides  nothing  but  the  case  before  it :  and  any  one  may,  if  he 
thinks  the  court  wrong,  bring  up  a  fresh  case  raising  again  the 
question  whether  the  law -is  valid. 

This  is  the  abstract  statement  of  the  matter ;  but  there  is 
also  an  historical  one.  Many  of  the  American  colonies  received 
charters  from  the  British  Crown,  which  created  or  recognized 
colonial  assemblies,  and  endowed  these  with  certain  powers 

1  Of  these,  the  Federal  Constitution  prevails  against  all  other  laws.  Federal 
statutes,  if  made  in  pursuance  of  and  conformably  to  the  Constitution,  prevail 
against  III.  and  IV.  If  in  excess  of  the  powers  granted  by  the  Constitution, 
they  are  to  that  extent  invalid.  A  State  Constitution  yields  to  I.  and  II.,  but 
prevails  against  the  statutes  of  the  State. 


182 


THE  NATIONAL  GOVEKNMENT 


PART  I 


of  making  laws  for  the  colony.  Such  powers  were  of  course 
limited,  partly  by  the  charter,  partly  by  usage,  and  were  sub¬ 
ject  to  the  superior  authority  of  the  Crown  or  of  the  British 
Parliament.  Questions  sometimes  arose  in  colonial  days 
whether  the  statutes  made  by  these  assemblies  were  in  excess 
of  the  powers  conferred  by  the  charter;  and  if  the  statutes 
were  found  to  be  in  excess,  they  were  held  invalid  by  the 
courts,  that  is  to  say,  in  the  first  instance,  by  the  colonial 
courts,  or,  if  the  matter  was  carried  to  England,  by  the  Privy 
Council. 

When  the  thirteen  American  colonies  asserted  their  inde¬ 
pendence  in  1776,  they  replaced  these  old  charters  by  new  Con¬ 
stitutions,  and  by  these  Constitutions  entrusted  their  respective 
legislative  assemblies  with  certain  specified  and  limited  legis¬ 
lative  powers.  The  same  question  was  then  liable  to  recur  with 
regard  to  a  statute  passed  by  one  of  these  assemblies.  If  such 
a  statute  was  in  excess  of  the  power  which  the  State  Constitu¬ 
tion  conferred  on  the  State  legislature,  or  in  any  way  trans¬ 
gressed  the  provisions  of  that  Constitution,  it  was  invalid,  and 
acts  done  under  it  were  void.  The  question,  like  any  other 
question  of  law,  came  for  decision  before  the  courts  of  the 
State.  Thus,  in  1786,  the  Supreme  Court  of  Rhode  Island  held 
that  a  statute  of  the  legislature  which  purported  to  make  a 
penalty  collectible  on  summary  conviction,  without  trial  by 
jury,  gave  the  court  no  jurisdiction,  i.e.  was  invalid,  the  colo¬ 
nial  charter,  which  was  then  still  in  force  as  the  Constitution 
of  the  State,  having  secured  the  right  of  trial  by  jury  in  all 
cases.  When  the  Constitution  of  the  United  States  came  into 
operation  in  1789,  and  was  declared  to  be  paramount  to  all 
State  Constitutions  and  State  statutes,  no  new  principle  was 
introduced ;  there  was  merely  a  new  application,  as  between 
the  nation  and  the  States,  of  the  old  doctrine  that  a  subordi¬ 
nate  and  limited  legislature  cannot  pass  beyond  the  limits  fixed 
for  it.  It  was  clear,  on  general  principles,  that  a  State  law 
incompatible  with  a  duly  enacted  Federal  law  must  give  way ; 
the  only  question  was :  What  courts  are  to  pronounce  upon  the 
question  whether  such  incompatibility  exists  ?  Who  is  to  de¬ 
cide  whether  or  no  the  authority  given  to  Congress  has  been 
exceeded,  and  whether  or  no  the  State  law  contravenes  the 
Federal  Constitution  or  a  Federal  statute? 


chap,  xxii  THE  COURTS  AND  THE  CONSTITUTION 


183 


In  1787  the  only  pre-existing  courts  were  the  State  courts. 
If  a  case  coming  before  them  raised  the  point  whether  a  State 
Constitution  or  statute  was  inconsistent  with  the  Federal  Con¬ 
stitution  or  a  statute  of  Congress,  it  was  their  duty  to  decide 
it,  like  any  other  point  of  law.  But  their  decision  could  not 
safely  be  accepted  as  final,  because,  being  themselves  the  off¬ 
spring  of,  and  amenable  to  the  State  governments,  they  would 
naturally  tend  to  uphold  State  laws  against  the  Federal  Con¬ 
stitution  or  statutes.  Hence  it  became  necessary  to  call  in 
courts  created  by  the  central  Federal  authority  and  co-exten- 
sive  with  it  —  that  is  to  say,  those  Federal  courts  which  have 
been  already  described.  The  matter  seems  complicated,  be¬ 
cause  we  have  to  consider  not  only  the  superiority  of  the 
Federal  Constitution  to  the  Federal  legislature  but  also  the 
superiority  of  both  the  Federal  Constitution  and  Federal  stat¬ 
utes  to  all  State  laws.  But  the  principle  is  the  same  and 
equally  simple  in  both  sets  of  cases.  Both  are  merely  instances 
of  the  doctrine,  that  a  law-making  body  must  not  exceed  its 
powers,  and  that  when  it  has  attempted  to  exceed  its  powers, 
its  so-called  statutes  are  not  laws  at  all,  and  cannot  be  enforced. 

In  America  the  supreme  law-making  power  resides  in  the 
people.  Whatever  they  enact  is  universally  binding.  All 
other  law-making  bodies  are  subordinate,  and  the  enactments 
of  such  bodies  must  conform  to  the  supreme  law,  else  they 
will  perish  at  its  touch,  as  a  fishing  smack  goes  down  before 
an  ocean  steamer.  And  these  subordinate  enactments,  if  at 
variance  with  the  supreme  law,  are  invalid  from  the  first, 
although  their  invalidity  may  remain  for  years  unnoticed  or 
unproved.  It  can  be  proved  only  by  the  decision  of  a  court  in 
a  case  which  raises  the  point  for  determination.  The  phe¬ 
nomenon  cannot  arise  in  a  country  whose  legislature  is  om¬ 
nipotent,  but  naturally  arises  wherever  we  find  a  legislature 
limited  by  a  superior  authority,  such  as  a  Constitution  which 
the  legislature  cannot  alter. 

All  that  the  judges  have  to  do  is  to  discover  from  the  enact¬ 
ments  before  them  what  the  will  of  the  people  is,  and  apply 
that  will  to  the  facts  of  a  given  case.  The  more  general  or 
ambiguous  the  language  which  the  people  have  used,  so  much 
the  more  difficult  is  the  task  of  interpretation,  so  much  greater 
the  need  for  ability  and  integrity  in  the  judges.  But  the  task 


184 


THE  NATIONAL  GOVERNMENT 


PART  I 


is  always  the  same  in  its  nature.  The  judges  have  no  concern 
with  the  motives  or  the  results  of  an  enactment,  otherwise 
than  as  these  may  throw  light  on  the  sense  in  which  the  enact¬ 
ing  authority  intended  it.  It  would  be  a  breach  of  duty  for 
them  to  express,  I  might  almost  say  a  breach  of  duty  to  enter¬ 
tain,  an  opinion  on  its  policy  except  so  far  as  its  policy  explains 
its  meaning.  They  may  think  a  statute  excellent  in  purpose 
and  working,  but  if  they  cannot  find  in  the  Constitution  a 
power  for  Congress  to  pass  it,  they  must  brush  it  aside  as 
invalid.  They  may  deem  another  statute  pernicious,  but  if  it 
is  within  the  powers  of  Congress,  they  must  enforce  it.  To 
construe  the  law,  that  is,  to  elucidate  the  will  of  the  people  as 
supreme  lawgiver,  is  the  beginning  and  end  of  their  duty. 
And  if  it  be  suggested  that  they  may  overstep  their  duty,  and 
may,  seeking  to  make  themselves  not  the  exponents  but  the 
masters  of  the  Constitution,  twist  and  pervert  it  to  suit  their 
own  political  views,  the  answer  is  that  such  an  exercise  of 
judicial  will  would  rouse  the  distrust  and  displeasure  of  the 
nation,  and  might,  if  persisted  in,  provoke  resistance  to  the  law 
as  laid  down  by  the  court,  possibly  an  onslaught  upon  the  court 
itself. 

The  importance  of  these  judiciary  functions  can  hardly  be 
exaggerated.  It  arises  from  two  facts.  One  is  that  as  the 
Constitution  cannot  easily  be  changed,  a  bad  decision  on  its 
meaning,  i.e.  a  decision  which  the  general  opinion  of  the  pro¬ 
fession  condemns,  may  go  uncorrected.  In  England,  if  a  court 
has  construed  a  statute  in  a  way  unintended  or  unexpected, 
Parliament  sets  things  right  next  session  by  amending  the 
statute,  and  so  prevents  future  decisions  to  the  same  effect. 
But  American  history  shows  only  one  instance  in  which  an 
unwelcome  decision  on  the  meaning  of  the  Constitution  has 
been  thus  dealt  with,  viz.  the  decision,  that  a  State  could  be 
sued  by  a  private  citizen,  which  led  to  the  eleventh  amend¬ 
ment,  whereby  it  was  declared  that  the  Constitution  should 
not  cover  a  case  which  the  court  had  held  it  did  cover. 

The  other  fact  which  makes  the  function  of  an  American 
judge  so  momentous  is  the  brevity,  the  laudable  brevity,  of  the 
Constitution.  The  words  of  that  instrument  are  general,  lay¬ 
ing  down  a  few  large  principles.  The  cases  which  will  arise 
as  to  the  construction  of  these  general  words  cannot  be  fore- 


chap,  xxii  THE  COURTS  AND  THE  CONSTITUTION 


185 


seen  till  they  arise.  When  they  do  arise  the  generality  of  the 
words  leaves  open  to  the  interpreting  judges  a  far  wider  field 
than  is  afforded  by  ordinary  statutes  which,  since  they  treat 
of  one  particular  subject,  contain  enactments  comparatively 
minute  and  precise.  Hence,  although  the  duty  of  a  court  is 
only  to  interpret,  the  considerations  affecting  interpretation 
are  more  numerous  than  in  the  case  of  ordinary  statutes,  more 
delicate,  larger  in  their  reach  and  scope.  They  sometimes 
need  the  exercise  not  merely  of  legal  acumen  and  judicial  fair¬ 
ness,  but  of  a  comprehension  of  the  nature  and  methods  of 
government  which  one  does  not  demand  from  the  European 
judge  who  walks  in  the  narrow  path  traced  for  him  by  ordi¬ 
nary  statutes.  It  is  therefore  hardly  an  exaggeration  to  say 
that  the  American  Constitution  as  it  now  stands,  with  the 
mass  of  fringing  decisions  which  explain  it,  is  a  far  more 
complete  and  finished  instrument  than  it  was  when  it  came 
fire-new  from  the  hands  of  the  Convention.  It  is  not  merely 
their  work  but  the  work  of  the  judges,  and  most  of  all  of  one 
man,  the  great  Chief- Justice  Marshall. 

These  observations  may  suffice  to  show  that  there  is  nothing 
strange  or  mysterious  about  the  relation  of  the  Federal  courts 
to  the  Constitution.  The  plan  which  the  Convention  of  1787 
adopted  is  simple,  useful,  and  conformable  to  general  legal 
principles.  It  is,  in  the  original  sense  of  the  word,  an  elegant 
plan.  But  it  is  not  novel,  as  was  indeed  observed  by  Hamilton 
in  the  Federalist.  It  was  at  work  in  the  States  before  the 
Convention  of  1787  met.  It  was  at  work  in  the  thirteen 
colonies  before  they  revolted  from  England.  It  is  an  applica¬ 
tion  of  old  and  familiar  legal  doctrines.  Such  novelty  as  there 
is  belongs  to  the  scheme  of  a  supreme  or  rigid  Constitution, 
reserving  the  ultimate  power  to  the  people,  and  limiting  in 
the  same  measure  the  power  of  a  legislature. 

It  is  nevertheless  true  that  there  is  no  part  of  the  American 
system  which  reflects  more  credit  on  its  authors  or  has  worked 
better  in  practice.  It  has  had  the  advantage  of  relegating 
questions  not  only  intricate  and  delicate,  but  peculiarly  liable 
to  excite  political  passions,  to  the  cool,  dry  atmosphere  of 
judicial  determination.  The  relations  of  the  central  Federal 
power  to  the  States,  and  the  amount  of  authority  which  Con¬ 
gress  and  the  President  are  respectively  entitled  to  exercise, 


186 


THE  NATIONAL  GOVERNMENT 


PART  I 


have  been  the  most  permanently  grave  questions  in  American 
history,  with  which  nearly  every  other  political  problem  has 
become  entangled.  If  they  had  been  left  to  be  settled  by 
Congress,  itself  an  interested  party,  or  by  any  dealings  be¬ 
tween  Congress  and  the  State  legislatures,  the  dangers  of  a 
conflict  would  have  been  extreme,  and  instead  of  one  civil 
war  there  might  have  been  several.  But  the  universal  respect 
felt  for  the  Constitution,  a  respect  which  grows  the  longer  it 
stands,  has  disposed  men  to  defer  to  any  decision  which  seems 
honestly  and  logically  to  unfold  the  meaning  of  its  terms. 
In  obeying  such  a  decision  they  are  obeying,  not  the  judges, 
but  the  people  who  enacted  the  Constitution.  To  have  fore¬ 
seen  that  the  power  of  interpreting  the  Federal  Constitution 
and  statutes,  and  of  determining  whether  or  no  State  Consti¬ 
tutions  and  statutes  transgress  Federal  provisions,  would  be 
sufficient  to  prevent  struggles  between  the  National  govern¬ 
ment  and  the  State  governments,  required  great  insight  and 
great  faith  in  the  soundness  and  power  of  a  principle. 

&  While  the  Constitution  was  being  framed  the  suggestion  was 
made,  and  for  a  time  seemed  likely  to  be  adopted,  that  a  veto 
on  the  acts  of  State  legislatures  should  be  conferred  upon 
the  Federal  Congress.  Discussion  revealed  the  objections  to 
such  a  plan.  Its  introduction  would  have  offended  the  sen¬ 
timent  of  the  States,  always  jealous  of  their  autonomy;  its 
exercise  would  have  provoked  collisions  with  them.  The 
disallowance  of  a  State  statute,  even  if  it  did  really  offend 
against  the  Federal  Constitution,  would  have  seemed  a  politi¬ 
cal  move,  to  be  resented  by  a  political  counter  move.  And  the 
veto  would  often  have  been  pronounced  before  it  could  have 
been  ascertained  exactly  how  the  State  statute  would  work, 
sometimes,  perhaps,  pronounced  in  cases  where  the  statute 
was  neither  pernicious  in  itself  nor  opposed  to  the  Federal 
Constitution.  But  by  the  action  of  the  courts  the  self-love 
of  the  States  is  not  wounded,  and  the  decision  annulling  their 
laws  is  nothing  but  a  tribute  to  the  superior  authority  of  that 
supreme  enactment  to  which  they  were  themselves  parties,  and 
which  they  may  themselves  desire  to  see  enforced  against  an¬ 
other  State  on  some  not  remote  occasion.  However,  the  idea 
of  a  veto  by  Congress  was  most  effectively  demolished  in  the 
Convention  by  Boger  Sherman,  who  acutely  remarked  that  a 


chap,  xxii  THE  COURTS  AND  THE  CONSTITUTION 


187 


veto  would  seem  to  recognize  as  valid  the  State  statute  ob¬ 
jected  to,  whereas  if  inconsistent  with  the  Constitution  it  was 
really  invalid  already  and  needed  no  veto. 

By  leaving  constitutional  questions  to  be  settled  by  the 
courts  of  law  another  advantage  was  incidentally  secured. 
The  court  does  not  go  to  meet  the  question ;  it  waits  for  the 
question  to  come  to  it.  When  the  court  acts  it  acts  at  the 
instance  of  a  party.  Sometimes  the  plaintiff  or  the  defendant 
may  be  the  National  government  or  a  State  government,  but 
far  more  frequently  both  are  private  persons,  seeking  to  enforce 
or  defend  their  private  rights.  For  instance,  in  the  famous 
case  which  established  the  doctrine  that  a  statute  passed  by 
a  State  repealing  a  grant  of  land  to  an  individual  made  on 
certain  terms  by  a  previous  statute  is  a  law  “  impairing  the 
obligation  of  a  contract,”  and  therefore  invalid,  under  Art.  i. 
§  10  of  the  Federal  Constitution;  the  question  came  before  the 
court  on  an  action  by  one  Fletcher  against  one  Peck  on  a  cove¬ 
nant  contained  in  a  deed  made  by  the  latter;  and  to  do  justice 
between  plaintiff  and  defendant  it  was  necessary  to  examine 
the  validity  of  a  statute  passed  by  the  legislature  of  Georgia. 

This  method  has  the  merit  of  not  hurrying  a  question  on, 
but  leaving  it  to  arise  of  itself.  Full  legal  argument  on  both 
sides  is  secured  by  the  private  interests  which  the  parties 
have  in  setting  forth  their  contentions ;  and  the  decision 
when  pronounced,  since  it  appears  to  be,  as  in  fact  it  is, 
primarily  a  decision  upon  private  rights,  obtains  that  respect 
and  moral  support  which  a  private  plaintiff  or  defendant  estab¬ 
lishing  his  legal  right  is  entitled  to  from  law-abiding  citizens. 
A  State  might  be  provoked  to  resistance  if  it  saw,  as  soon  as 
it  had  passed  a  statute,  the  Federal  government  inviting  the 
Supreme  Court  to  declare  that  statute  invalid.  But  when  the 
Federal  authority  stands  silent,  and  a  year  after  in  an  ordinary 
action  between  Smith  and  Jones  the  court  decides  in  favour  of 
Jones,  who  argued  that  the  statute  on  which  the  plaintiff  relied 
was  invalid  because  it  transgressed  some  provision  of  the  Con¬ 
stitution,  everybody  feels  that  Jones  was  justified  in  so  argu¬ 
ing,  and  that  since  judgment  was  given  in  his  favour  he  must 
be  allowed  to  retain  the  money  which  the  court  has  found  to 
be  his,  and  the  statute  which  violated  his  private  right  must 
fall  to  the  ground. 


CHAPTER  XXIII 


THE  WORKING  OF  THE  COURTS 

Those  readers  who  have  followed  thus  far  the  account  given 
of  the  Eederal  courts  have  probably  asked  themselves  how 
judicial  authorities  can  sustain  the  functions  which  America 
requires  them  to  discharge.  It  is  plain  that  judges,  when 
sucked  into  the  vortex  of  politics,  must  lose  dignity,  impartial¬ 
ity,  and  influence.  But  how  can  judges  keep  out  of  politics, 
when  political  issues  raising  party  passions  come  before  them  ? 
Must  not  constitutional  questions,  questions  as  to  the  rights 
under  the  Constitution  of  the  Eederal  government  against  the 
States,  and  of  the  branches  of  the  Eederal  government  against 
one  another,  frequently  involve  momentous  political  issues? 
In  the  troublous  times  during  which  the  outlines  of  the  English 
Constitution  were  settled,  controversy  often  raged  round  the 
courts,  because  the  decision  of  contested  points  lay  in  their 
hands.  When  Charles  I.  could  not  induce  Parliament  to  admit 
the  right  of  levying  contributions  which  he  claimed,  and  Par¬ 
liament  relied  on  the  power  of  the  purse  as  its  defence  against 
Charles  I.,  the  question  whether  ship-money  could  lawfully  be 
levied  was  vital  to  both  parties,  and  the  judges  held  the  balance 
of  power  in  their  hands.  At  that  moment  the  law  could  not 
be  changed,  because  the  Houses  and  the  king  stood  opposed: 
hence  everything  turned  on  the  interpretation  of  the  existing 
law.  In  America  the  Constitution  is  at  all  times  very  hard  to 
change :  much  more  then  must  political  issues  turn  on  its 
interpretation.  And  if  this  be  so,  must  not  the  interpreting 
court  be  led  to  assume  a  control  over  the  executive  and  legis¬ 
lative  branches  of  the  government,  since  it  has  the  power  of 
declaring  their  acts  illegal  ? 

There  is  ground  for  these  criticisms.  The  evil  they  point  to 
has  occurred  and  may  recur.  But  it  occurs  very  rarely,  and 
188 


CHAP.  XXIII 


THE  WORKING  OF  THE  COURTS 


189 


may  be  averted  by  the  same  prudence  which  the  courts  have 
hitherto  generally  shown.  The  causes  which  have  enabled  the 
Federal  courts  to  avoid  it,  and  to  maintain  their  dignity  and 
influence  almost  unshaken,  are  the  following :  — 

I.  The  Supreme  Court  —  I  speak  of  the  Supreme  Court 
because  its  conduct  has  governed  that  of  inferior  Federal  courts 
—  has  steadily  refused  to  interfere  in  purely  political  ques¬ 
tions.  Whenever  it  finds  any  discretion  given  to  the  President, 
any  executive  duty  imposed  on  him,  it  considers  the  manner  in 
which  he  exercises  his  discretion  and  discharges  the  duty  to  be 
beyond  its  province.  Whenever  the  Constitution  has  conferred 
a  power  of  legislating  upon  Congress,  the  court  declines  to 
inquire  whether  the  use  of  the  power  was  in  the  case  of  a  partic¬ 
ular  statute  passed  by  Congress  either  necessary  or  desirable,  or 
whether  it  was  exerted  in  a  prudent  manner,  for  it  holds  all 

such  matters  to  be  within  the  exclusive  province  of  Congress. 

¥ 

“In  measures  exclusively  of  a  political,  legislative,  or  executive  char¬ 
acter,  it  is  plain  that  as  the  supreme  authority  as  to  these  questions  belongs 
to  the  legislative  and  executive  departments  they  cannot  be  re-examined  else¬ 
where.  Thus  Congress,  having  the  power  to  declare  war,  to  levy  taxes,  to 
appropriate  money,  to  regulate  intercourse  and  commerce  with  foreign 
nations,  their  mode  of  executing  these  powers  can  never  become  the  subject 
of  re-examination  in  any  other  tribunal.  So  the  power  to  make  treaties 
being  confided  to  the  President  and  Senate,  when  a  treaty  is  properly  ratified 
it  becomes  the  law  of  the  land,  and  no  other  tribunal  can  gainsay  its  stipu¬ 
lations.  Yet  cases  may  readily  be  imagined  in  which  a  tax  may  be  laid,  or  a 
treaty  made  upon  motives  and  grounds  wholly  beside  the  intention  of  the  Con¬ 
stitution.  The  remedy,  however,  in  such  cases  is  solely  by  an  appeal  to 
the  people  at  the  elections,  or  by  the  salutary  power  of  amendment  provided 
by  the  Constitution  itself.” 1 

Adherence  to  this  principle  has  enabled  the  court  to  avoid 
an  immixture  in  political  strife  which  must  have  destroyed  its 
credit,  has  deterred  it  from  entering  the  political  arena,  where 
it  could  have  been  weak,  and  enabled  it  to  act  without  fear  in 
the  sphere  of  pure  law,  where  it  is  strong.  Occasionally,  how¬ 
ever,  as  I  shall  explain  presently,  the  court  has  come  into  col¬ 
lision  with  the  executive.  Occasionally  it  has  been  required 
to  give  decisions  which  have  worked  with  tremendous  force  > 
on  politics.  The  most  famous  of  these  was  the  Dred  Scott 
case,  in  which  the  Supreme  Court,  on  an  action  by  a  negro  for 


1  Story,  Commentaries  on  the  Constitution ,  §  374, 


190 


THE  NATIONAL  GOVERNMENT 


PART  I 


assault  and  battery  against  the  person  claiming  to  be  his  mas¬ 
ter,  declared  that  a  slave  taken  temporarily  to  a  free  State  and 
to  a  Territory  in  which  Congress  had  forbidden  slavery,  and 
afterwards  returning  into  a  slave  State  and  resuming  residence 
there,  was  not  a  citizen  capable  of  suing  in  the  T  ederal  courts 
if  by  the  law  of  the  slave  State  he  was  still  a  slave.  This  was 
the  point  which  actually  called  for  decision;  but  the  majority 
of  the  court,  for  there  was  a  dissentient  minority,  went  further, 
and  delivered  a  variety  of  dicta  on  various  other  points  touch¬ 
ing  the  legal  status  of  negroes  and  the  constitutional  view  of 
slavery.  This  judgment,  since  the  language  used  in  it  seemed 
to  cut  off  the  hope  of  a  settlement  by  the  authority  of  Congress 
of  the  then  (1857)  pending  disputes  over  slavery  and  its  exten¬ 
sion,  did  much  to  precipitate  the  civil  war. 

II.  Looking  upon  itself  as  a  pure  organ  of  the  law,  com¬ 
missioned  to  do  justice  between  man  and  man,  but  to  do 
nothing  more,  the  Supreme  Court  has  steadily  refused  to  decide 
abstract  questions,  or  to  give  opinions  in  advance  by  way  of 
advice  to  the  executive.  When,  in  1793,  President  Washing¬ 
ton  requested  its  opinion  on  the  construction  of  the  treaty  of 
1778  with  France,  the  judges  declined  to  comply. 

III.  Other  causes  which  have  sustained  the  authority  of 
the  court  by  saving  it  from  immersion  in  the  turbid  pool 
of  politics,  are  the  strength  of  professional  feeling  among 
American  lawyers,  the  relation  of  the  bench  to  the  bar,  the 
power  of  the  legal  profession  in  the  country.  The  keen  inter¬ 
est  which  the  profession  takes  in  the  law  secures  a  large  number 
of  acute  and  competent  critics  of  the  interpretation  put  upon 
the  law  by  the  judges.  Such  men  form  a  tribunal  to  whose 
opinion  the  judges  are  sensitive,  and  all  the  more  sensitive 
because  the  judges,  like  those  of  England,  but  unlike  those  of 
continental  Europe,  have  been  themselves  practising  counsel. 
The  better  lawyers  of  the  United  States  do  not  sink  theii  pro¬ 
fessional  sentiment  and  opinion  in  their  party  sympathies. 
They  know  good  law  even  when  it  goes  against  themselves, 
and  privately  condemn  as  bad  law  a. decision  none  the  less 
because  it  benefits  their  party  or  their  client.  The  Eedeial 
judge  who  has  recently  quitted  the  ranks  of  the  bar  remains  in 
sympathy  with  it,  respects  its  views,  desires  its  approbation. 
Both  his  inbred  professional  habits,  and  his  respect  for  those 


CHAP.  XXIII 


THE  WORKING  OF  THE  COURTS 


191 


traditions  which  the  bar  prizes,  restrain  him  from  prostituting 
his  office  to  party  objects.  Though  he  has  usually  been  a 
politician,  and  owes  his  promotion  to  his  party,  his  political 
trappings  drop  off  him  when  he  mounts  the  supreme  bench. 
He  has  now  nothing  to  fear  from  party  displeasure,  because  he 
is  irremovable  (except  by  impeachment),  nothing  to  hope  from 
party  favour,  because  he  is  at  the  top  of  the  tree  and  can 
climb  no  higher.  Virtue  has  all  the  external  conditions  in 
her  favour.  It  is  true  that  virtue  is  compatible  with  the 
desire  to  extend  the  power  and  jurisdiction  of  the  court.  But 
even  allowing  that  this  motive  may  occasionally  sway  the 
judicial  mind,  the  circumstances  which  surround  the  action 
of  a  tribunal  debarred  from  initiative,  capable  of  dealing 
only  with  concrete  cases  that  come  before  it  at  irregular 
intervals,  unable  to  appropriate  any  of  the  sweets  of  power 
other  than  power  itself,  make  a  course  of  systematic  usur¬ 
pation  more  difficult  and  less  seductive  than  it  would  be  to 
a  legislative  assembly  or  an  executive  council.  As  the  re¬ 
spect  of  the  bench  for  the  bar  tends  to  keep  the  judges  in 
the  straight  path,  so  the  respect  and  regard  of  the  bar  for 
the  bench,  a  regard  grounded  on  the  sense  of  professional 
brotherhood,  ensure  the  moral  influence  of  the  court  in  the 
country. 

That  this  factor  in  the  maintenance  of  judicial  influence 
proved  so  potent  was  largely  due  to  the  personal  eminence  of 
the  judges.  One  must  not  call  that  a  result  of  fortune  which 
was  the  result  of  the  wisdom  of  successive  Presidents  in  choos¬ 
ing  capable  men  to  sit  on  the  supreme  Federal  bench.  Yet  one 
man  was  so  singularly  fitted  for  the  office  of  chief-justice,  and 
rendered  such  incomparable  services  in  it,  that  the  Americans 
have  been  wont  to  regard  him  as  a  special  gift  of  favouring 
Providence.  This  was  John  Marshall,  who  presided  over  the 
Supreme  Court  from  1801  till  his  death  in  1835  at  the  age  of 
eighty,  and  whose  fame  overtops  that  of  all  other  American 
judges  more  than  Papinian  overtops  the  jurists  of  Pome  or 
Lord  Mansfield  the  jurists  of  England.  Ho  other  man  did 
half  so  much  either  to  develop  the  Constitution  by  expounding 
it,  or  to  secure  for  the  judiciary  its  rightful  place  in  the  gov¬ 
ernment  as  the  living  voice  of  the  Constitution.  Ho  one  vindi¬ 
cated  more  strenuously  the  duty  of  the  court  to  establish  the 


192 


THE  NATIONAL  GOVERNMENT 


PART  I 


authority  of  the  fundamental  law  of  the  land,  no  one  abstained 
more  scrupulously  from  trespassing  on  the  field  of  executive 
administration  or  political  controversy.  The  admiration  and 
respect  which  he  and  his  colleagues  won  for  the  court  remain 
its  bulwark :  the  traditions  which  were  formed  under  him  and 
them  have  continued  in  general  to  guide  the  action  and  elevate 
the  sentiments  of  their  successors. 

Nevertheless,  the  court  has  not  always  had  smooth  seas  to 
navigate.  It  has  more  than  once  been  shaken  by  blasts  of 
unpopularity.  It  has  not  infrequently  found  itself  in  conflict 
with  other  authorities. 

The  first  attacks  arose  out  of  its  decision  that  it  had  juris¬ 
diction  to  entertain  suits  by  private  persons  against  a  State.1 
This  point  was  set  at  rest  by  the  eleventh  amendment ;  but  the 
States  then  first  learnt  to  fear  the  Supreme  Court  as  an  antag¬ 
onist.  In  1801,  in  an  application  requiring  the  secretary  of 
state  to  deliver  a  commission,  it  declared  itself  to  have  the 
power  to  compel  an  executive  officer  to  fulfil  a  ministerial  duty 
affecting  the  rights  of  individuals.2  President  Jefferson  pro¬ 
tested  angrily  against  this  claim,  but  it  has  been  repeatedly 
reasserted,  and  is  now  undoubted  law.  It  was  in  this  same 
case  that  the  court  first  explicitly  asserted  its  duty  to  treat  as 
invalid  an  Act  of  Congress  inconsistent  with  the  Constitution. 

In  1805  its  independence  was  threatened  by  the  impeachment 
of  Justice  Chase,  the  aim  of  the  Republican  (Democratic) 
party  then  dominant  in  Congress  being  to  set  a  precedent  for 
ejecting,  by  means  of  impeachment,  judges  (and  especially 
Chief-Justice  Marshall)  whose  attitude  on  constitutional  ques¬ 
tions  they  condemned.  The  acquittal  of  Chase  dispelled  this 
danger :  nor  could  John  Randolph,  who  then  led  the  House, 
secure  the  acceptance  of  an  amendment  to  the  Constitution 
which  he  thereupon  proposed  for  enabling  the  President  to  re¬ 
move  Federal  judges  on  an  address  of  both  Houses  of  Congress. 
In  1806  the  court  for  the  first  time  pronounced  a  State  statute 


1  Chisholm  v.  Georgia ,  see  above,  p.  174. 

2  Marbury  v.  Madison,  1  Cranch,  137.  In  this  case  the  court  refused  to 
issue  the  mandamus  asked  for,  but  upon  the  ground  that  the  statute  of  Con¬ 
gress  giving  to  the  Supreme  Court  original  jurisdiction  to  issue  a  mandamus 
was  inconsistent  with  the  Constitution.  See  also  Kendal  v.  United  States,  12 
Peters,  616;  United  States  v.  Schurz,  102  U.  S.  378. 


CHAP.  XXIII 


THE  WORKING  OF  THE  COURTS 


193 


void ;  in  1816  and  1821  it  rendered  decisions  establishing  its 
authority  as  a  supreme  court  of  appeal  from  State  courts  on 
“  Federal  questions,”  and  unfolding  the  full  meaning  of  the 
doctune  that  the  Constitution,  and  Acts  of  Congress  duly 
made  in  pursuance  of  the  Constitution,  are  the  fundamental 
and  supreme  law  of  the  land.  This  was  a  doctrine  which  had 
not  been  adequately  apprehended  even  by  lawyers,  and  its 
development,  legitimate  as  we  now  deem  it,  roused  opposition. 
The  ultra-Democrats  who  came  into  power  under  President 
Jackson  in  1829  were  specially  hostile  to  a  construction  of  the 
Constitution  which  seemed  to  trench  upon  State  rights,1  and 
when  in  1832  the  Supreme  Court  ordered  the  State  of  Georgia 
to  release  persons  imprisoned  under  a  Georgian  statute  which 
the  court  declared  to  be  invalid,2  Jackson,  whose  duty  it  was 
to  enforce  the  decision  by  the  executive  arm,  remarked,  “  John 
Marshall  has  pronounced  his  judgment :  let  him  enforce  it  if 
he  can.”  The  successful  resistance  of  Georgia  in  the  Cherokee 
dispute11  gave  a  blow  to  the  authority  of  the  court,  and  marked 
the  beginning  of  a  new  period  in  its  history,  during  which,  in 
the  hands  of  judges  mostly  appointed  by  the  Democratic  party, 
it  made  no  further  advance  in  power. 

In  1857  the  Dred  Scott  judgment,  pronounced  by  a  majority 
of  the  judges,  excited  the  strongest  outbreak  of  displeasure  yet 
witnessed.  The  Republican  party,  then  rising  into  strength, 
denounced  this  decision  in  the  resolutions  of  the  convention 
which  nominated  Abraham  Lincoln  in  1860,  and  its  doctrine 
as  to.  citizenship  was  expressly  negatived  in  the  fourteenth 
constitutional  amendment  adopted  after  the  War  of  Secession. 

It  was  feared  that  the  political  leanings  of  the  judges  who 

1  Martin  Van  Buren  (President  1837-41)  expressed  the  feelings  of  the  hulk 
of  his  party  when  he  complained  bitterly  of  the  encroachments  of  the  Supreme 
Court,  and  declared  that  it  would  never  have  been  created  had  the  people  fore¬ 
seen  the  powers  it  would  acquire. 

2  This  was  only  one  act  in  the  long  struggle  of  the  Cherokee  Indians  against 
the  oppressive  conduct  of  Georgia — conduct  which  the  court  emphatically 
condemned,  though  it  proved  powerless  to  help  the  unhappy  Cherokees. 

^  The  matter  did  not  come  to  an  absolute  conflict,  because  before  the  time 
arrived  for  the  court  to  direct  the  United  States  marshal  of  the  district  of 
Georgia  to  summon  the  posse  comitcitus  and  the  President  to  render  assistance 
in  liberating  the  prisoners,  the  prisoners  submitted  to  the  State  authorities, 
and  were  thereupon  released.  They  probably  believed  that  the  imperious 
Jackson  would  persist  in  his  hostility  to  the  Supreme  Court. 


194 


THE  NATIONAL  GOVERNMENT 


PART  1 


formed  the  court  at  the  outbreak  of  the  war  would  induce  them 
to  throw  legal  difficulties  in  the  prosecution  of  the  measures 
needed  for  re-establishing  the  authority  of  the  Union,  ihese 
fears  proved  ungrounded,  although  some  contests  aiose  as  to 
the  right  of  officers  in  the  Federal  army  to  disregard  v\  1  its  of 
habeas  corpus  issued  by  the  court.1  In  1868,  having  then  be¬ 
come  Republican  in  its  sympathies  by  the  appointment  of  new 
members  as  the  older  judges  disappeared,  it  tended  to  sustain 
the  congressional  plan  of  Reconstruction  which  President 
Johnson  desired  to  defeat,  and  in  subsequent  cases  it  has 
given  effect  to  most,  though  not  to  all,  of  the  statutes  passed 
by  Congress  under  the  three  amendments  which  abolished 
slavery  and  secured  the  rights  of  the  Negroes.  In  1866  it 
refused  to  entertain  proceedings  instituted  for  the  purpose  of 
forbidding  the  President  to  execute  the  Reconstruction  Acts. 

Two  of  its  later  acts  are  thought  by  some  to  have  affected 
public  confidence.  One  of  these  was  the  reversal,  first  in  18  <1, 
and  again  upon  broader  but  not  inconsistent  grounds,  in  1884, 
of  the  decision,  given  in  1870,  which  declared  invalid  the  Act 
of  Congress  making  government  paper  a  legal  tender  for  debts. 
The  original  decision  of  1870  was  rendered  by  a  majority  of 
five  to  three.  The  court  was  afterwards  changed  by  the  cre¬ 
ation  of  an  additional  judgeship,  and  by  the  appointment  of  a 
new  member  to  fill  a  vacancy  which  occurred  after  the  settle¬ 
ment,  though  before  the  delivery,  of  the  first  decision.  Then 
the  question  was  brought  up  again  in  a  new  case  between 
different  parties,  and  decided  in  the  opposite  sense  (i.e.  in 
favour  of  the  power  of  Congress  to  pass  legal  tender  Acts)  by 
a  majority  of  five  to  four.  Finally,  in  1884,  another  suit  hav¬ 
ing  brought  up  a  point  practically  the  same,  though  under  a 
later  statute  passed  by  Congress,  the  court  determined  with 
only  one  dissentient  voice  that  the  power  existed.  This  last 
decision  excited  some  criticism,  especially  among  the  more 
conservative  lawyers,  because  it  seemed  to  remove  restrictions 
hitherto  supposed  to  exist  on  the  authority  of  Congress,  rec¬ 
ognizing  the  right  to  establish  a  forced  paper  currency  as  an 
attribute  of  the  sovereignty  of  the  National  government.  But 
be  the  decision  right  or  wrong,  a  point  on  which  high  author- 


1  See  Ex  parte  Milligan ,  4  Wall.  129. 


CHAP.  XXIII 


THE  WORKING  OF  THE  COURTS 


195 


ities  are  still  divided,  the  reversal  by  the  highest  court  in  the 
land  of  its  own  previous  decision  may  have  tended  to  unsettle 
men’s  reliance  on  the  stability  of  the  law ;  while  the  manner 
of  the  earlier  reversal,  following  as  it  did  on  the  appointment 
of  two  new  justices,  both  known  to  be  in  favour  of  the  view 
which  the  majority  of  the  court  had  just  disapproved,  disclosed 
a  weak  point  in  the  constitution  of  the  tribunal  which  may 
some  day  prove  fatal  to  its  usefulness. 

The  other  misfortune  was  the  interposition  of  the  court  in 
the  presidential  electoral  count  dispute  of  1877.  The  five 
justices  of  the  Supreme  Court  who  were  included  in  the  elec¬ 
toral  commission  then  appointed  voted  on  party  lines  no  less 
steadily  than  did  the  senators  and  representatives  who  sat  on 
it.  A  function  scarcely  judicial,  and  certainly  not  contem¬ 
plated  by  the  Constitution,  was  then  for  the  first  time  thrown 
upon  the  judiciary,  and  in  discharging  it  the  judiciary  acted 
exactly  like  non-judicial  persons. 

Notwithstanding  this  occurrence,  which  after  all  was  quite 
exceptional,  the  credit  and  dignity  of  the  Supreme  Court  stand 
very  high.  No  one  of  its  members  has  ever  been  suspected  of 
corruption,  and  comparatively  few  have  allowed  their  political 
sympathies  to  disturb  their  official  judgment.  Though  for 
many  years  back  every  President  (except  Harrison,  February 
1893)  has  appointed  only  men  of  his  own  party,  and  frequently 
leading  politicians  of  his  own  party,  the  new-made  judge  has 
left  partisanship  behind  him,  while  no  doubt  usually  retaining 
that  bias  or  tendency  of  his  mind  which  party  training  pro¬ 
duces.  When  a  large  majority  of  the  judges  belong  to  one 
party,  the  other  party  regret  the  fact,  and  welcome  the  pros¬ 
pect  of  putting  in  some  of  their  own  men  as  vacancies  occur ; 
yet  the  desire  for  an  equal  representation  of  both  parties  is 
based,  not  on  a  fear  that  suitors  will  suffer  from  the  influence 
of  party  spirit,  but  on  the  feeling  that  when  any  new  con¬ 
stitutional  question  arises  it  is  right  that  the  tendencies  which 
have  characterized  the  view  of  the  Constitution  taken  by  the 
Democrats  on  the  one  hand  and  the  Republicans  on  the  other, 
should  each  be  duly  represented. 

Apart  from  these  constitutional  questions,  the  value  of  the 
Federal  courts  to  the  country  at  large  has  been  inestimable. 
They  have  done  much  to  meet  the  evils  which  an  elective  and 


196 


THE  NATIONAL  GOVERNMENT 


PART  I 


ill-paid  State  judiciary  inflicts  on  some  of  the  newer  and  a  few 
even  of  the  older  States.  The  Federal  Circuit  and  District 
judges,  small  as  are  their  salaries,  are  in  most  States  individ¬ 
ually  superior  men  to  the  State  judges,  because  the  greater 
security  of  tenure  induces  abler  men  to  accept  the  post. 
Being  irremovable,  they  feel  themselves  independent  of  par¬ 
ties  and  politicians,  whom  the  elected  State  judge,  holding  for 
a  limited  term,  may  be  tempted  to  conciliate  with  a  view  to 
re-election.  Plaintiffs,  therefore,  wTien  they  have  a  choice  of 
suing  in  a  State  court  or  a  Federal  court,  frequently  prefer  the 
latter;  and  the  litigant  who  belongs  to  a  foreign  country,  or 
to  a  different  State  from  that  in  which  his  opponent  resides, 
may  think  his  prospects  of  an  unbiassed  decision  better  before 
it  than  before  a  State  tribunal.  Nor  is  it  without  interest  to 
add  that  criminal  justice  is  more  strictly  administered  in  the 
Federal  courts. 

Federal  judgeships  of  the  second  and  third  rank  (Circuit 
and  District)  have  been  hitherto  given  to  the  members  of  the 
President’s  party,  and  by  an  equally  well  established  usage,  to 
persons  resident  in  the  State  or  States  where  the  Circuit  or 
District  court  is  held.  In  1891,  however,  a  Republican  Presi¬ 
dent  appointed  two  Democrats  to  be  judges  of  the  new  Circuit 
Courts  of  Appeals,  and  placed  several  Democrats  on  the  (tem¬ 
porary)  Private  Land  Claims  court.  Cases  of  corruption  are 
practically  unknown,  and  partisanship  has  been  rare.  The 
chief  defects  have  been  the  inadequacy  of  the  salaries,  and 
the  insufficiency  of  the  staff  in  the  more  populous  commercial 
States  to  grapple  with  the  vast  and  increasing  business  which 
flows  in  upon  them.  So  too,  in  the  Supreme  Court,  arrears 
have  so  accumulated  that  it  is  sometimes  three  years  or  more 
from  the  time  when  a  cause  is  entered  till  the  day  when  it 
comes  on  for  hearing. 

One  question  remains  to  be  put  and  answered. 

The  Supreme  Court  is  the  living  voice  of  the  Constitution 
—  that  is,  of  the  will  of  the  people  expressed  in  the  funda¬ 
mental  law  they  have  enacted.  It  is,  therefore,  as  some  one 
has  said,  the  conscience  of  the  people,  who  have  resolved  to 
restrain  themselves  from  hasty  or  unjust  action  by  placing 
their  representatives  under  the  restriction  of  a  permanent 
law.  It  is  the  guarantee  of  the  minority,  who,  when  threat- 


CHAP.  XXIII 


THE  WORKING  OF  THE  COURTS 


197 


ened  by  the  impatient  vehemence  of  a  majority,  can  appeal  to 
this  permanent  law,  finding  the  interpreter  and  enforcer  thereof 
in  a  court  set  high  above  the  assaults  of  faction. 

To  discharge  these  momentous  functions,  the  court  must  be 
stable  even  as  the  Constitution  is  stable.  Its  spirit  and  tone 
must  be  that  of  the  people  at  their  best  moments.  It  must 
resist  transitory  impulses,  and  resist  them  the  more  firmly  the 
more  vehement  they  are.  Entrenched  behind  impregnable 
ramparts,  it  must  be  able  to  defy  at  once  the  open  attacks  of 
the  other  departments  of  the  government,  and  the  more  dan¬ 
gerous,  because  impalpable,  seductions  of  popular  sentiment. 

Does  it  possess,  has  it  displayed,  this  strength  and  stabil¬ 
ity  ? 

It  has  not  always  followed  its  own  former  decisions.  This 
is  natural  in  a  court  whose  errors  cannot  be  cured  by  the  inter¬ 
vention  of  the  legislature.  The  English  final  court  of  appeal 
always  follows  its  previous  decisions,  though  high  authorities 
have  declared  that  cases  may  be  imagined  in  which  it  would 
refuse  to  do  so.  And  that  court  (the  House  of  Lords)  can 
afford  so  to  adhere,  because,  when  an  old  decision  begins  to  be 
condemned,  Parliament  can  forthwith  alter  the  law.  But  as 
nothing  less  than  a  constitutional  amendment  can  alter  the 
law  contained  in  the  Federal  Constitution,  the  Supreme  Court 
must  choose  between  the  evil  of  unsettling  the  law  by  revers¬ 
ing,  and  the  evil  of  perpetuating  bad  law  by  following,  a  former 
decision.  It  may  reasonably,  in  extreme  cases,  deem  the  latter 
evil  the  greater. 

The  Supreme  Court  feels  the  touch  of  public  opinion.  Opin¬ 
ion  is  stronger  in  America  than  anywhere  else  in  the  world, 
and  judges  are  only  men.  To  yield  a  little  may  be  prudent,  for 
the  tree  that  cannot  bend  to  the  blast  may  be  broken.  There 
is,  moreover,  this  ground  at  least  for  presuming  public  opinion 
to  be  right,  that  through  it  the  progressive  judgment  of  the 
world  is  expressed.  Of  course,  whenever  the  law  is  clear,  be¬ 
cause  the  words  of  the  Constitution  are  plain  or  the  cases 
interpreting  them  decisive  on  the  point  raised,  the  court  must 
look  solely  to  those  words  and  cases,  and  cannot  permit  any 
other  consideration  to  affect  its  mind.  But  when  the  terms  of 
the  Constitution  admit  of  more  than  one  construction,  and 
when  previous  decisions  have  left  the  true  construction  so  far 


198 


THE  NATIONAL  GOVERNMENT 


PART  I 


open  that  the  point  in  question  may  be  deemed  new,  is  a  court 
to  be  blamed  if  it  prefers  the  construction  which  the  bulk  of 
the  people  deem  suited  to  the  needs  of  the  time  ?  A  court  is 
sometimes  so  swayed  consciously,  more  often  unconsciously, 
because  the  pervasive  sympathy  of  numbers  is  irresistible 
even  by  elderly  lawyers. 

The  Supreme  Court  has  changed  its  colour,  i.e.  its  temper  and 
tendencies,  from  time  to  time,  according  to  the  political  pro¬ 
clivities  of  the  men  who  composed  it.  It  changes  very  slowly, 
because  the  vacancies  in  a  small  body  happen  rarely,  and  its 
composition  therefore  often  represents  the  predominance  of  a 
past  and  not  of  the  presently  ruling  party.  From  1789  down 
till  the  death  of  Chief-Justice  Marshall  in  1835  its  tendency 
was  to  the  extension  of  the  powers  of  the  Federal  government, 
and  therewith  of  its  own  jurisdiction,  because  the  ruling  spirits 
in  it  were  men  who  belonged  to  the  old  Federalist  party,  though 
that  party  fell  in  1800,  and  disappeared  in  1814.  From  1835 
till  the  War  of  Secession  its  sympathies  were  with  the  doc¬ 
trines  of  the  Democratic  party.  Without  actually  abandoning 
the  positions  of  the  previous  period,  the  court,  during  these 
years  when  Chief-Justice  Taney  presided  over.it,  leant  against 
any  further  extension  of  Federal  power  or  of  its  own  jurisdic¬ 
tion.  During  and  after  the  war,  when  the  ascendency  of  the 
Republican  party  had  begun  to  change  the  composition  of  the 
court,  a  third  period  opened.  Centralizing  ideas  were  again 
powerful:  the  vast  war  powers  asserted  by  Congress  were  m 
most  instances  supported  by  judicial  decision,  the  rights  of 
States  while  maintained  (as  in  the  Granger  cases)  as  against 
private  persons  or  bodies,  were  for  a  time  regarded  with  less 
favour  whenever  they  seemed  to  conflict  with  those  of  the 
Federal  government.  In  none  of  these  three  periods  can  the 
judges  be  charged  with  any  prostitution  of  their  functions  to 
party  purposes.  Their  action  flowed  naturally  from  the  habits 
of  thought  they  had  formed  before  their  accession  to  the  bench, 
and  from  the  sympathy  they  could  not  but  feel  with  the  doc¬ 
trines  on  whose  behalf  they  had  contended. 

The  Fathers  of  the  Constitution  studied  nothing  more  than 
to  secure  the  complete  independence  of  the  judiciary.  The  Pies- 
ident  was  not  permitted  to  remove  the  judges,  nor  Congress  to 
diminish  their  salaries.  One  thing  only  was  either  forgotten 


CHAP.  XXIII 


THE  WORKING  OF  THE*  COURTS 


199 


or  deemed  undesirable,  because  highly  inconvenient,  to  deter¬ 
mine, —  the  number  of  judges  in  the  Supreme  Court.  Here 
was  a  weak  point,  a  joint  in  the  court’s  armour  through  which 
a  weapon  might  some  day  penetrate.  Congress  having  in  1801, 
pursuant  to  a  power  contained  in  the  Constitution,  established 
sixteen  Circuit  courts,  President  Adams,  immediately  before  he 
quitted  office,  appointed  members  of  his  own  party  to  the  jus¬ 
ticeships  thus  created.  When  President  J efferson  came  in,  he 
refused  to  admit  the  validity  of  the  appointments;  and  the 
newly  elected  Congress,  which  was  in  sympathy  with  him,  abol¬ 
ished  the  Circuit  courts  themselves,  since  it  could  find  no  other 
means  of  ousting  the  new  justices.  This  method  of  attack, 
whose  constitutionality  has  been  much  doubted,  cannot  be  used 
against  the  Supreme  Court,  because  that  tribunal  is  directly 
created  by  the  Constitution.  But  as  the  Constitution  does  not 
prescribe  the  number  of  justices,  a  statute  may  increase  or 
diminish  the  number  as  Congress  thinks  fit. 

In  1866,  when  Congress  was  in  fierce  antagonism  to  Presi¬ 
dent  Johnson,  and  desired  to  prevent  him  from  appointing  any 
judges,  it  reduced  the  number,  which  was  then  ten,  by  a  statute 
providing  that  no  vacancy  should  be  filled  up  till  the  number 
was  reduced  to  seven.  In  1869,  when  J ohnson  had  been  suc¬ 
ceeded  by  Grant,  the  number  was  raised  to  nine,  and  presently 
the  altered  court  allowed  the  question  of  the  validity  of  the 
Legal  Tender  Act,  just  before  determined,  to  be  reopened. 
This  method  is  plainly  susceptible  of  further  and  possibly 
dangerous  application.  Suppose  a  Congress  and  President 
bent  on  doing  something  which  the  Supreme  Court  deems  con¬ 
trary  to  the  Constitution.  They  pass  a  statute.  A  case  arises 
under  it.  The  court  on  the  hearing  of  the  case  unanimously 
declares  the  statute  to  be  null,  as  being  beyond  the  powers  of 
Congress.  Congress  forthwith  passes  and  the  President  signs 
another  statute  more  than  doubling  the  number  of  the  justices. 
The  President  appoints  to  the  new  justiceships  men  who  are 
pledged  to  hold  the  former  statute  constitutional.  The  Senate 
confirms  his  appointments.  Another  case  raising  the  validity 
of  the  disputed  statute  is  brought  up  to  the  court.  The  new 
justices  outvote  the  old  ones:  the  statute  is  held  valid:  the 
security  provided  for  the  protection  of  the  Constitution  is  gone 
like  a  morning  mist. 


200 


THE  NATIONAL  GOVERNMENT 


PART  I 


What  prevents  such  assaults  on  the  fundamental  law  — 
assaults  which,  however  immoral  in  substance,  would  be  per¬ 
fectly  legal  in  form  ?  Not  the  mechanism  of  government,  for 
all  its  checks  have  been  evaded.  Not  the  conscience  of  the 
legislature  and  the  President,  for  heated  combatants  seldom 
shrink  from  justifying  the  means  by  the  end.  Nothing  but 
the  fear  of  the  people,  whose  broad  good  sense  and  attachment 
to  the  great  principles  of  the  Constitution  may  generally  be 
relied  on  to  condemn  such  a  perversion  of  its  forms.  Yet  if 
excitement  has  risen  high  over  the  country,  a  majority  of  the 
people  may  acquiesce ;  and  then  it  matters  little  whether  what 
is  really  a  revolution  be  accomplished  by  openly  violating  or 
by  merely  distorting  the  forms  of  law.  To  the  people  we 
come  sooner  or  later :  it  is  upon  their  wisdom  and  self-restraint 
that  the  stability  of  the  most  cunningly  devised  scheme  of 
government  will  in  the  last  resort  depend. 


CHAPTER  XXIV 

COMPARISON  OF  THE  AMERICAN  AND  EUROPEAN  SYSTEMS 

The  greatest  problem  that  free  peoples  have  to  solve  is  how 
to  enable  the  citizens  at  large  to  conduct  or  control  the  exec¬ 
utive  business  of  the  state.  England  was  in  1787  the  only 
nation  (the  cantons  of  Switzerland  were  so  small  as  scarcely 
to  be  thought  of)  that  had  solved  this  problem,  first,  by  the 
development  of  a  representative  system,  secondly,  by  giving 
to  her  representatives  a  large  authority  over  the  executive. 
The  Constitutional  Convention,  therefore,  turned  its  eyes  to 
her  when  it  sought  to  constitute  a  free  government  for  the 
new  nation  which  the  “  more  perfect  union  ”  of  the  States  was 
calling  into  conscious  being. 

They  conceived  that  such  freedom  and  excellence  as  the 
British  Constitution  possessed  depended  largely  on  the  separa¬ 
tion  of  the  legislature  from  the  executive,  as  this  secured  the 
independence  of  the  former.  They  held,  however,  that  in 
Britain  the  Crown  was  always  endeavouring  unduly  to  influ¬ 
ence  Parliament  and  was  itself  excessive.  These  views  tallied 
with  and  were  strengthened  by  the  ideas  and  habits  formed  in 
the  Americans  by  their  experience  of  representative  govern¬ 
ment  in  the  colopies,  ideas  and  habits  which  were  after  all  the 
dominant  factor  in  the  construction  of  their  political  system. 
In  these  colonies  the  executive  power  had  been  vested  either 
in  governors  sent  from  England  by  the  Crown,  or  in  certain 
proprietors,  to  whom  the  English  Crown  had  granted  heredi¬ 
tary  rights  in  a  province.  Each  representative  assembly, 
while  it  made  laws  and  voted  money  for  the  purposes  of 
its  respective  commonwealth,  did  not  control  the  governor, 
because  his  commission  issued  from  the  British  Crown  and  he 
was  responsible  thereto.  A  governor  had  no  parliamentary 
cabinet,  but  only  officials  responsible  to  himself  and  the 
Crovn.  His  veto  on  acts  of  the  colonial  legislature  was  fre- 

201 


202 


THE  NATIONAL  GOVERNMENT 


PART  i 


quently  used  ;  and  that  body ,  with  no  means  of  influencing  his 
conduct  other  than  the  refusal  to  vote  money,  was  a  legislature 
and  nothing  more.  Thus  the  Americans  found  and  admired 
in  their  colonial  (or  State)  systems  a  separation  of  the  legis¬ 
lative  from  the  executive  branch,  more  complete  than  in  Eng¬ 
land  ;  and  being  already  proud  of  their  freedom,  they  attributed 

its  amplitude  chiefly  to  this  cause. 

From  their  colonial  and  State  experience,  coupled  with  their 
notions  of  the  British  Constitution,  the  men  of  1787  drew 
three  conclusions :  First,  that  the  vesting  of  the  executive  and 
the  legislative  powers  in  different  hands  was  the  normal  and 
natural  feature  of  a  free  government.  Secondly,  that  the 
power  of  the  executive  was  dangerous  to  liberty,  and  must  be 
kept  within  well-defined  boundaries.  Thirdly,  that  in  order  to 
check  the  head  of  the  state  it  was  necessary  not  only  to  define 
his  powers,  and  appoint  him  for  a  limited  period,  but  also  to 
destroy  his  opportunities  of  influencing  the  legislature.  Con¬ 
ceiving  that  ministers,  as  named  by  and  acting  under  the  orders 
of  the  President,  would  be  his  instruments  rather  than  faithful 
representatives  of  the  people,  they  resolved  to  prevent  them 
from  holding  this  double  character,  and  therefore  forbade 
a  any  person  holding  office  under  the  United  States  to  be  a 
member  of  either  House.  They  deemed  that  in  this  w ay  they 
had  rendered  their  legislature  pure,  independent,  vigilant,  the  j 
servant  of  the  people,  the  foe  of  arbitrary  power. 

Omnipotent,  however,  the  framers  of  the  Constitution  did  not 
mean  to  make  it.  They  were  sensible  of  the  opposite  dangers 
which  might  flow  from  a  feeble  and  dependent  executive.  The 
proposal  made  in  the  first  draft  of  the  Constitution  that  Con-  ; 
gress  should  elect  the  President,  was  abandoned,  lest  he  should  ; 
be  merely  its  creature  and  unable  to  check  it.  To  strengthen  J 
his  position,  and  prevent  intrigues  among  members  of  Gongiess 
for  this  supreme  office,  it  was  settled  that  the  people  should  I 
themselves,  through  certain  electors  appointed  for  the  purpose,  > 
choose  the  President.  By  giving  him  the  better  status  of  a 
popular,  though  indirect,  mandate,  he  became  independent  of 
Congress,  and  was  encouraged  to  use  his  veto,  which  a  mere  i 
nominee  of  Congress  might  have  hesitated  to  do.  Thus  it  was 
believed  in  1787  that  a  due  balance  had  been  arrived  at,  the 
independence  of  Congress  being  secured  on  the  one  side  and  : 


chap,  xxiv  AMERICAN  AND  EUROPEAN  SYSTEMS  200 


the  independence  of  the  President  on  the  other.  Each  power 
holding  the  other  in  check,  the  people,  jealous  of  their  hardly 
won  liberties,  would  be  courted  by  each,  and  safe  from  the  en¬ 
croachments  ofL  either. 

There  was  of  course  the  risk  that  controversies  as  to  their 
respective  rights  and  powers  would  arise  between  these  two 
departments.  But  the  creation  of  a  court  entitled  to  place  an 
authoritative  interpretation  upon  the  Constitution  in  which  the 
supreme  will  of  the  people  was  expressed,  provided  a  remedy 
available  in  many,  if  not  in  all,  of  such  cases,  and  a  security 
for  the  faithful  observance  of  the  Constitution  which  England 
did  not,  and  under  her  system  of  an  omnipotent  Parliament 
could  not,  possess. 

“  They  builded  better  than  they  knew.”  They  divided  the 
legislature  from  the  executive  so  completely  as  to  make  each 
not  only  independent,  but  weak  even  in  its  own  proper  sphere. 
The  President  was  debarred  from  carrying  Congress  along  with 
him,  as  a  popular  prime  minister  may  carry  Parliament  in 
England,  to  effect  some  sweeping  change.  He  is  fettered  in 
foreign  policy,  and  in  appointments,  by  the  concurrent  rights 
of  the  Senate.  He  is  forbidden  to  appeal  at  a  crisis  from  Con¬ 
gress  to  the  country.  Nevertheless  his  office  retains  a  meas¬ 
ure  of  solid  independence  in  the  fact  that  the  nation  regards 
him  as  a  direct  representative  and  embodiment  of  its  majesty, 
while  the  circumstance  that  he  holds  office  for  four  years  only, 
makes  it  possible  for  him  to  do  acts  of  power  during  those  four 
years  which  would  excite  alarm  from  a  permanent  sovereign. 
Entrenched  behind  the  ramparts  of  a  rigid  Constitution,  he  has 
retained  rights  of  which  his  prototype  the  English  king  has 
been  gradually  stripped.  Congress  on  the  other  hand  was 
weakened,  as  compared  with  the  British  Parliament  in  which 
one  House  has  become  dominant,  by  its  division  into  two  co¬ 
equal  Houses,  whose  disagreement  paralyzes  legislative  action. 
And  it  lost  that  direct  control  over  the  executive  which  the 
presence  of  ministers  in  the  legislature,  and  their  dependence 
upon  a  majority  of  the  popular  House,  give  to  the  Parliaments 
of  Britain  and  her  colonies.  It  has  diverged  widely  from  the 
English  original  which  it  seemed  likely,  with  only  a  slight 
difference,  to  reproduce. 

The  British  House  of  Commons  has  grown  to  the  stature  of 


204 


THE  NATIONAL  GOVERNMENT 


PART  I 


a  supreme  executive  as  well  as  legislative  council,  acting  not 
only  by  its  properly  legislative  power,  but  through  its  right  to 
displace  ministers  by  a  resolution  of  want  of  confidence,  and 
to  compel  the  sovereign  to  employ  such  servants  as  it  approves. 
Congress  remains  a  pure  legislature,  unable  to  displace  a  min¬ 
ister,  unable  to  choose  the  agents  by  whom  its  laws  are  to  be 
carried  out,  and  having  hitherto  failed  to  develop  that  internal 
organization  which  a  large  assembly  needs  in  order  to  frame 
and  successfully  pursue  definite  schemes  of  policy.  Neverthe¬ 
less,  so  far-reaching  is  the  power  of  legislation,  Congress  has 
encroached,  and  may  encroach  still  farther,  upon  the  sphere  of 
the  executive.  It  encroaches  not  merely  with  a  conscious  pur¬ 
pose,  but  because  the  law  of  its  being  has  forced  it  to  create  in 
its  committees  bodies  whose  expansion  necessarily  presses  on 
the  executive.  It  encroaches  because  it  is  restless,  unwearied, 
always  drawn  by  the  progress  of  events  into  new  fields  of 
labour. 

It  is  worth  while  to  compare  the  form  which  a  constitutional 
struggle  takes  under  the  cabinet  system  and  under  that  of 
America. 

In  England,  if  the  executive  ministry  displeases  the  House 
of  Commons,  the  House  passes  an  adverse  vote.  The  ministry 
have  their  choice  to  resign  or  dissolve  Parliament.  If  they 
resign,  a  new  ministry  is  appointed  from  the  party  which  has 
proved  itself  strongest  in  the  House  of  Commons  ;  and  co-oper¬ 
ation  being  restored  between  the  legislature  and  the  executive, 
public  business  proceeds.  If,  on  the  other  hand,  the  ministry 
dissolve  Parliament,  a  new  Parliament  is  sent  up  which,  if 
favourable  to  the  existing  Cabinet,  keeps  them  in  office,  if  un¬ 
favourable,  dismisses  them  forthwith.  Accord  is  in  either 
case  restored.  Should  the  difference  arise  between  the  House 
of  Lords  and  a  ministry  supported  by  the  House  of  Commons, 
and  the  former  persist  in  rejecting  a  bill  which  the  Commons 
send  up,  a  dissolution  is  the  usual  remedy;  and  if  the  newly 
elected  House  of  Commons  reasserts  the  view  of  its  predecessor, 
the  Lords,  according  to  the  now  recognized  constitutional  prac¬ 
tice,  yield  at  once.  Should  they,  however,  still  stand  out,  there 
remains  the  extreme  expedient,  threatened  in  1832,  but  never 
yet  resorted  to,  of  a  creation  by  the  sovereign  (i.e.  the  ministry) 
of  new  peers  sufficient  to  turn  the  balance  of  votes  in  the  Upper 


chap,  xxiv  AMERICAN  AND  EUROPEAN  SYSTEMS 


205 


House.  Practically  the  ultimate  decision  always  rests  with  the 
people,  that  is  to  say,  with  the  party  which  for  the  moment 
commands  a  majority  of  electoral  votes.  This  method  of  cutting 
knots  applies  to  all  differences  that  can  arise  between  executive 
and  legislature.  It  is  a  swift  and  effective  method;  in  this 
swiftness  and  effectiveness  lie  its  dangers  as  well  as  its  merits. 

In  America  a  dispute  between  the  President  and  Congress 
may  arise  over  an  executive  act  or  over  a  bill.  If  over  an 
executive  act,  an  appointment  or  a  treaty,  one  branch  of  Con¬ 
gress,  the  Senate,  can  check  the  President,  that  is,  can  prevent 
him  from  doing  what  he  wishes,  but  cannot  make  him  do  what 
they  wish.  If  over  a  bill  which  the  President  has  returned  to 
Congress  unsigned,  the  two  Houses  can,  by  a  two-thirds  majority, 
pass  it  over  his  veto,  and  so  end  the  quarrel ;  though  the  carry¬ 
ing  out  of  the  bill  in  its  details  must  be  left  to  him  and  his 
ministers,  whose  dislike  of  it  may  render  them  unwilling  and 
therefore  unsuitable  agents.  Should  there  not  be  a  two-thirds 
majority,  the  bill  drops ;  and  however  important  the  question 
may  be,  however  essential  to  the  country  some  prompt  dealing 
with  it,  either  in  the  sense  desired  by  the  majority  of  Congress 
or  in  that  preferred  by  the  President,  nothing  can  be  done  till 
the  current  term  of  Congress  expires.  The  matter  is  then 
remitted  to  the  people.  If  the  President  has  still  two  more 
years  in  office,  the  people  may  signify  their  approval  of  his 
policy  by  electing  a  House  in  political  agreement  with  him,  or 
disapprove  it  by  re-electing  a  hostile  House.  If  the  election 
of  a  new  President  coincides  with  that  of  the  new  House,  the 
people  have  a  second  means  provided  of  expressing  their  judg¬ 
ment.  They  may  choose  not  only  a  House  of  the  same  or  an 
opposite  complexion  to  the  last,  but  a  President  of  the  same 
or  an  opposite  complexion.  Anyhow  they  can  now  establish 
accord  between  one  House  of  Congress  and  the  executive.1  The 
Senate,  however,  may  still  remain  opposed  to  the  President, 

i  It  is  of  course  possible  that  the  people  may  elect  at  the  same  time  a 
President  belonging  to  one  party  and  a  House  the  majority  whereof  belongs 
to  the  other  party.  This  happened  in  1848,  and  again  in  1876,  when,  however, 
the  presidential  election  was  disputed.  It  is  rendered  possible  by  the  fact  that 
the  President  is  elected  on  a  different  plan  from  the  House,  the  smaller  States 
having  relatively  more  weight  in  a  presidential  election,  and  the  presidential 
electors  being  now  chosen,  in  nearly  every  State,  by  “general  ticket,”  not  in 
districts. 


206 


THE  NATIONAL  GOVERNMENT 


PART  I 


and  may  not  be  brought  into  harmony  with  him  until  a  suffi¬ 
cient  time  has  elapsed  for  the  majority  in  it  to  be  changed  by 
the  choice  of  new  senators  by  the  State  legislatures.  This  is  a 
slower  method  than  that  of  Britain.  It  may  fail  in  a  crisis 
needing  immediate  action ;  but  it  escapes  the  danger  of  a  hur¬ 
ried  and  perhaps  irrevocable  decision. 

Englishmen  deem  it  a  merit  in  their  system  that  the  prac¬ 
tical  executive  of  the  country  is  directly  responsible  to  the 
House  of  Commons.  In  the  United  States,  however,  not  only 
in  the  National  government,  but  in  every  one  of  the  States,  the 
opposite  doctrine  prevails— that  the  executive  should  be  wholly 
independent  of  the  legislative  branch.  Americans  understand 
that  this  scheme  involves  a  loss  of  power  and  efficiency,  but 
they  believe  that  it  makes  greatly  for  safety  in  a  popular  gov¬ 
ernment.  They  expect  the  executive  and  the  legislature  to 
work  together  as  well  as  they  can,  and  public  opinion  does 
usually  compel  a  degree  of  co-operation  and  efficiency  which 
perhaps  could  not  be  expected  theoretically.  It  is  an  interest¬ 
ing  commentary  on  the  tendencies  of  democratic  government, 
that  in  America  reliance  is  coming  to.  be  placed  more  and 
more,  in  the  nation,  in  the  State,  and  in  the  city,,  upon  the 
veto  of  the  executive  as  a  protection  to  the  community  against 
the  legislative  branch.  Weak  executives  frequently  do  harm, 
but  a  strong  executive  has  rarely  abused  popular  confidence. 
On  the  other  hand,  instances  where  the  executive,  by  the  use 
of  his  veto  power,  has  arrested  mischiefs  due  to  the  action  of 
the  legislature  are  by  no  means  rare.  This  circumstance  leads 
some  Americans  to  believe  that  the  day  is  not  far  distant  when 
in  England  some  sort  of  veto  power,  or  other  constitutional 
safeguard,  must  be  interposed  to  protect  the  people  against  a 

hasty  decision  of  their  representatives. 

While  some  bid  England  borrow  from  her  daughter,  other 
Americans  conceive  that  the  separation  of  the  legislature  from 
the  executive  has  been  carried  too  far  in  the.  United  States, 
and  suggest  that  it  would  be  an  improvement  if  the  ministers 
of  the  President  were  permitted  to  appear  in  both  Houses  of 
Congress  to  answer  questions,  perhaps  even  to  join  in  debate. 
I  have  no  space  to  discuss  the  merits  of  this  proposal,  which 
no  doubt  derives  support  from  the  “  particularistic  ”  tendencies 
of  Congress,  in  which  there  is  no  group  of  persons  bound,  like 


chap,  xxiv  AMERICAN  AND  EUROPEAN  SYSTEMS 


207 


a  British,  ministry,  to  maintain  the  interests  of  the  country  as  a 
whole.  But  I  must  observe  that  it  might  lead  to  changes  more 
extensive  than  its  advocates  seem  to  contemplate.  The  more 
the  President’s  ministers  come  into  contact  with  Congress,  the 
more  difficult  will  it  be  to  maintain  the  independence  of  Con¬ 
gress  which  he  and  they  now  possess.  It  is  hard  to  say,  when 
one  begins  to  make  alterations  in  an  old  house,  how  far  one 
will  be  led  on  in  rebuilding,  and  I  doubt  whether  this  change 
in  the  present  American  system,  possibly  in  itself  desirable, 
might  not  be  found  to  involve  a  reconstruction  large  enough  to 
put  a  new  face  upon  several  parts  of  that  system. 

In  the  history  of  the  United  States  there  have  been  four 
serious  conflicts  between  the  legislature  and  the  executive. 
The  first  was  that  between  President  Jackson  and  Congress. 
It  ended  in  Jackson’s  favour,  for  he  got  his  way;  but  he  pre¬ 
vailed  because  during  the  time  when  both  Houses  were  against 
him,  his  opponents  had  not  a  two-thirds  majority.  In  the  lat¬ 
ter  part  of  the  struggle  the  (re-elected)  House  was  with  him ; 
and  before  he  had  quitted  office  his  friends  obtained  a  majority 
in  the  always-changing  Senate.  But  his  success  was  not  so 
much  the  success  of  the  executive  office  as  of  a  particular  Pres¬ 
ident  popular  with  the  masses..  The  second  contest,  which 
was  between  President  Tyler  and  both  Houses  of  Congress, 
was  a  drawn  battle,  because  the  majority  in  the  Houses  fell 
short  of  two-thirds.  In  the  third,  between  President  Johnson 
and  Congress,  Congress  prevailed;  the  enemies  of  the  Presi¬ 
dent  having,  owing  to  the  disfranchisement  of  most  Southern 
States,  an  overpowering  majority  in  both  Houses,  and  by  that 
majority  carrying  over  his  veto  a  series  of  acts  so  peremptory 
that  even  his  reluctance  to  obey  them  could  not  destroy, 
though  it  sometimes  marred,  their  efficiency.  In  the  fourth 
case,  referred  to  in  a  previous  chapter,  the  victory  remained 
with  the  President,  because  the  congressional  majority  against 
him  was  slender.  But  a  presidential  victory  is  usually  a  neg¬ 
ative  victory.  It  consists  not  in  his  getting  what  he  wants, 
but  in  his  preventing  Congress  from  getting  what  it  wants.1 

1  In  the  famous  case  of  President  Jackson’s  removal  of  the  government  de¬ 
posits  of  money  from  the  United  States  Bank,  the  President  did  accomplish 
his  object.  But  this  was  a  very  exceptional  case,  being  one  which  had  re¬ 
mained  within  the  executive  discretion  of  the  President,  since  no  statute  had 
happened  to  provide  for  it. 


208 


THE  NATIONAL  GOVERNMENT 


PART  I 


The  practical  result  of  the  American  arrangements  thus  comes 
to  be  that  when  one  party  possesses  a  large  majority  in  Con¬ 
gress  it  can  overpower  the  President,  taking  from  him  all  but 
a  few  strictly  reserved  functions,  such  as  those  of  pardoning, 
of  making  promotions  in  the  army  and  navy,  and  of  negotiating 
(not  of  concluding  treaties,  for  these  require  the  assent  of  the 
Senate)  with  foreign  States.  Where  parties  are  pretty  equally 
divided,  i.e.  when  the  majority  is  one  way  in  the  Senate,  the 
other  way  in  the  House,  or  when  there  is  only  a  small  major¬ 
ity  against  the  President  in  both  Houses,  the  President  is  in 
so  far  free  that  new  fetters  cannot  be  laid  upon  him ;  but  he 
must  move  under  those  which  previous  legislation  has  imposed, 
and  can  take  no  step  for  which  new  legislation  is  needed. 

It  is  another  and  a  remarkable  consequence  of  the  absence 
of  cabinet  government  in  America,  that  there  is  also  no  paity 
government  in  the  European  sense.  Party  government  in 
Prance,  Italy,  and  England  means,  that  one  set  of  men,  united, 
or  professing  to  be  united,  by  holding  one  set  of  opinions,  have 
obtained  control  of  the  whole  machinery  of  government,  and 
are  working  it  in  conformity  with  those  opinions.  Then  majoi- 
ity  in  the  country  is  represented  by  a  majority  in  the  legis¬ 
lature,  and  to  this  majority  the  ministry  of  necessity  belongs. 
The  ministry  is  the  supreme  committee  of  the  party,  and  con¬ 
trols  all  the  foreign  as  well  as  domestic  affairs  of  the  nation, 
because  the  majority  is  deemed  to  be  the  nation.  It  is  other¬ 
wise  in  America.  Men  do,  no  doubt,  talk  of  one  paity  as  being 
“  in  power,”  meaning  thereby  the  party  to  which  the  then  Presi¬ 
dent  belongs.  But  they  do  so  because  that  party  enjoys  the  spoils 
of  office,  in  which  to  so  many  politicians  the  value  of  power 
consists.  They  do  so  also  because  in  the  early  days  the  party 
which  prevailed  in  the  legislative  usually  prevailed  also  in  the 
executive  department,  and  because  the  presidential  election 
was,  and  still  is,  the  main  struggle  which  proclaimed  the  pre¬ 
dominance  of  one  or  other  party.1  #  . 

But  the  Americans,  when  they  speak  of  the  administration 


iThe  history  of  the  Republic  divides  itself  in  the  mind  of  most  Americans 
into  a  succession  of  Presidents  and  administrations,  just  as  old-fashioned  his¬ 
torians  divided  the  history  of  England  by  the  reigns  of  knigs,  a  tolerable 
way  of  reckoning  in  the  days  of  Edward  the  Third  and  Richard  the  Second 
when  the  personal  gifts  of  the  sovereign  were  a  chief  factor  in  affairs,  but  ab¬ 
surd  in  the  days  of  George  the  Fourth  and  William  the  Fourth. 


chap,  xxiv  AMERICAN  AND  EUROPEAN  SYSTEMS 


209 


party  as  the  party  in  power,  have,  in  borrowing  an  English 
phrase,  applied  it  to  utterly  different  facts.  Their  “  party  in 
power”  need  have  no  “ power”  beyond  that  of  securing  places 
for  its  adherents.  It  may  be  in  a  minority  in  one  House  of 
Congress,  in  which  event  it  accomplishes  nothing,  but  can  at 
most  merely  arrest  adverse  legislation,  or  in  a  small  minority 
in  both  Houses  of  Congress,  in  which  event  it  must  submit  to 
see  many  things  done  which  it  dislikes.  And  if  its  enemies 
control  the  Senate,  even  its  executive  arm  is  paralyzed.  Though 
party  feeling  has  generally  been  stronger  in  America  than  in 
England,  and  even  now  covers  a  larger  proportion  of  the  voters, 
and  enforces  a  stricter  discipline,  party  government  is  dis¬ 
tinctly  weaker. 

We  are  now  in  a  position  to  sum  up  the  practical  results 
of  the  scheme  which  purports  to  separate  Congress  from  the 
executive,  instead  of  uniting  them  as  they  are  united  under  a 
cabinet  government.  They  are  live;  — 

The  President  and  his  ministers-  have  no  initiative  in  Con¬ 
gress,  little  influence  over  Congress,  except  what  they 
can  exert  upon  individual  members,  through  the  be¬ 
stowal  of  patronage. 

Congress  has,  together  with  unlimited  powers  of  inquiry, 
imperfect  powers  of  control  over  the  administrative 
departments. 

The  nation  does  not  always  know  how  or  where  to  fix 
responsibility  for  misfeasance  or  neglect.  The  person 
and  bodies  concerned  in  making  and  executing  the 
laws  are  so  related  to  one  another  that  each  can  gen¬ 
erally  shift  the  burden  of  blame  on  some  one  else, 
and  no  one  acts  under  the  full  sense  of  direct  accounta¬ 
bility. 

There  is  a  loss  of  force  by  friction  —  i.e.  part  of  the  energy, 
force,  and  time  of  the  men  and  bodies  that  make  up  the 
government  is  dissipated  in  struggles  with  one  another. 
This  belongs  to  all  free  governments,  because  all  free 
governments  rely  upon  checks.  But  the  more  checks, 
the  more  friction. 

There  is  a  risk  that  executive  vigour  and  promptitude  may 
be  found  wanting  at  critical  moments. 


210 


THE  NATIONAL  GOVERNMENT 


PART  I 


We  may  include  these  defects  in  one  general  expression. 
There  is  in  the  American  government,  considered  as  a  whole, 
a  want  of  unity.  Its  branches  are  unconnected ;  their  efforts 
are  not  directed  to  one  aim,  do  not  produce  one  harmonious 
result.  The  sailors,  the  helmsman,  the  engineer,  do  not  seem 
to  have  one  purpose  or  obey  one  will,  so  that  instead  of  mak¬ 
ing  steady  way  the  vessel  may  pursue  a  devious  or  zigzag 
course,  and  sometimes  merely  turn  round  and  round  in  the 
water.  The  more  closely  any  one  watches  from  year  to  year 
the  history  of  free  governments,  and  himself  swims  in  the 
deep-eddying  time  current,  the  more  does  he  feel  that  cur¬ 
rent’s  force,  so  that  human  foresight  and  purpose  seem  to 
count  for  little,  and  ministers  and  parliaments  to  be  swept 
along  they  know  not  whither  by  some  overmastering  fate  or 
overruling  providence.  But  this  feeling  is  stronger  in  America 
than  in  Europe,  because  in  America  such  powers  as  exist  act 
with  little  concert  and  resign  themselves  to  a  conscious  im¬ 
potence.  Clouds  arise,  blot  out  the  sun  overhead,  and  burst 
in  a  tempest;  the  tempest  passes,  and  leaves  the  blue  above 
bright  as  before,  but  at  the  same  moment  other  clouds  are  al¬ 
ready  beginning  to  peer  over  the  horizon.  Parties  are  formed 
and  dissolved,  compromises  are  settled  and  assailed  and  vio¬ 
lated,  wars  break  out  and  are  fought  through  and  forgotten, 
new  problems  begin  to  show  themselves,  and  the  civil  powers, 
Presidents,  and  Cabinets,  and  State  governments,  and  Houses 
of  Congress,  seem  to  have  as  little  to  do  with  all  these  changes, 
as  little  ability  to  foresee  or  avert  or  resist  them,  as  the  farmer, 
who  sees  approaching  the  tornado  which  will  uproot  his  crop, 
has  power  to  stay  its  devastating  course. 

A  President  can  do  little,  for  he  does  not  lead  either  Con¬ 
gress  or  the  nation.  Congress  cannot  guide  or  stimulate  the 
President,  nor  replace  him  by  a  man  fitter  for  the  emergency. 
The  Cabinet  neither  receive  a  policy  from  Congress  nor  give 
one  to  it.  Each  power  in  the  State  goes  its  own  way,  or  wastes 
precious  moments  in  discussing  which  way  it  shall  go,  and  that 
which  comes  to  pass  seems  to  be  a  result  not  of  the  action  of 
the  legal  organs  of  the  State,  but  of  some  larger  force  which  at 
one  time  uses  their  discord  as  its  means,  at  another  neglects 
them  altogether.  This  at  least  is  the  impression  which  the 
history  of  the  greatest  problem  and  greatest  struggle  that 


ciiap.  xxiv  AMERICAN  AND  EUROPEAN  SYSTEMS 


211 


America  has  seen,  the  struggle  of  the  slaveholders  against  the 
Free  Soil  and  Union  party,  culminating  in  the  War  of  the 
Rebellion,  makes  upon  one  who  looking  back  on  its  events 
sees  them  all  as  parts  of  one  drama.  Inevitable  the  struggle 
may  have  been  ;  and  in  its  later  stages  passion  had  grown  so 
hot,  and  the  claims  of  the  slaveholders  so  extravagant,  that  pos¬ 
sibly  under  no  scheme  of  government  —  so  some  high  Ameri¬ 
can  authorities  hold  —  could  a  peaceful  solution  have  been 
looked  for.  Yet  it  must  be  remembered  that  the  carefully 
devised  machinery  of  the  Constitution  did  little  to  solve  that 
problem  or  avert  that  struggle,  while  the  system  of  divided 
and  balanced  and  limited  powers,  giving  every  advantage  to 
those  who  stood  by  the  existing  law,  and  placing  the  rights 
of  the  States  behind  the  bulwarks  of  an  almost  unalterable 
instrument,  may  have  tended  to  aggravate  the  spirit  of  uncom¬ 
promising  resistance.  The  nation  asserted  itself  at  last,  but 
not  till  the  resources  which  the  Constitution  provided  for  the 
attainment  of  a  peaceful  solution  had  irretrievably  failed. 

This  want  of  unity  is  painfully  felt  in  a  crisis.  When  a 
sudden  crisis  comes  upon  a  free  State,  the  executive  needs  two 
things,  a  large  command  of  money  and  powers  in  excess  of 
those  allowed  at  ordinary  times.  Under  the  European  system 
the  duty  of  meeting  such  a  crisis  is  felt  to  devolve  as  much  on 
the  representative  Chamber  as  on  the  ministers  who  are  its 
agents.  The  Chamber  is  therefore  at  once  appealed  to  for 
supplies,  and  for  such  legislation  as  the  occasion  demands. 
When  these  have  been  given,  the  ministry  moves  on  with  the 
weight  of  the  people  behind  it;  and  as  it  is  accustomed  to 
work  at  all  times  with  the  Chamber,  and  the  Chamber  with  it, 
the  piston  plays  smoothly  and  quickly  in  the  cylinder.  In 
America  the  President  has  at  ordinary  times  little  to  do  with 
Congress,  while  Congress  is  unaccustomed  to  deal  with  execu¬ 
tive  questions.  Its  machinery,  and  especially  the  absence  of 
ministerial  leaders  and  consequent  want  of  organization,  unfit 
it  for  promptly  confronting  practical  troubles.  It  is  apt  to 
be  sparing  of  supplies,  and  of  that  confidence  which  doubles 
the  value  of  supplies.  Jealousies  of  the  executive,  which  are 
proper  in  quiet  times  and  natural  towards  those  with  whom 
Congress  has  little  direct  intercourse,  may  now  be  perilous,  yet 
how  is  Congress  to  trust  persons  not  members  of  its  own  body 


PART  1 


THE  NATIONAL  GOVERNMENT 


nor  directly  amenable  to  its  control  ?  When  dangers  thicken 
the  only  device  may  be  the  Roman  one  of  a  temporary  dictator¬ 
ship.  Something  like  this  happened  in  the  War  of  Secession, 
for  the  powers  then  conferred  upon  President  Lincoln,  or  exer¬ 
cised  without  congressional  censure  by  him,  were  almost  as 
much  in  excess  of  those  enjoyed  under  the  ordinary  law  as 
the  authority  of  a  Roman  dictator  exceeded  that  of  a  Roman 
consul 1  Fortunately  the  habits  of  legality,  which  lie  deep  m 
the  American  as  they  did  in  the  Roman  people,  reasserted 
themselves  after  the  war  was  over,  as  they  were  wont  to  do  at 
Rome  in  her  earlier  and  better  days.  When  the  squall  had 
passed  the  ship  righted,  and  she  has  pursued  her  subsequent 

course  on  as  even  a  keel  as  before. 

The  defects  of  the  tools  are  the  glory  of  the  workman.  .  lhe 
more  completely  self-acting  is  the  machine,  the  smaller  is  the 
intelligence  needed  to  work  it ;  the  more  liable  it  is  to  derange¬ 
ment  so  much  greater  must  be  the  skill  and  care  applied  by 
one  who  tends  it.  The  English  Constitution,  which  we  admire 
as  a  masterpiece  of  delicate  equipoises  and  complicated  mechan¬ 
ism  would  anywhere  but  in  England  be  full  of  difficulties  and 
dangers.  It  stands  and  prospers  in  virtue  of  the  traditions 
that  still  live  among  English  statesmen  and  the  reverence  that 
has  ruled  English  citizens.  It  works  by  a  body  of  understand¬ 
ings  which  no  writer  can  formulate,  and  of  habits  which  cen¬ 
turies  have  been  needed  to  instil.  So  the  American  people 
have  a  practical  aptitude  for  politics,  a  clearness  of  vision  an 
capacity  for  self-control  never  equalled  by  any  other  nation 
In  1861  they  brushed  aside  their  darling  legalities,  allowed 
the  executive  to  exert  novel  powers,  passed  lightly  laws  whose 
constitutionality  remains  doubtful,  raised  an  enormous  army, 
and  contracted  a  prodigious  debt.  Romans  could  not  have  been 
more  energetic  in  their  sense  of  civic  duty,  nor  more  trustful 
to  their  magistrates.  When  the  emergency  had  passed  away 
the  torrent  which  had  overspread  the  plain  fell  back  at  once 
into  its  safe  and  well-worn  channel.  The  reign  of  legality 
returned ;  and  only  four  years  after  the  power  of  the  execu¬ 
tive  had  reached  its  highest  point  in  the  hands  of  President 
Lincoln,  it  was  reduced  to'its  lowest  point  m  those  of  I  resi- 

1  For  Lincoln’s  argument  respecting  his  use  of  extraordinary  powers,  see 
note  to  Chapter  XXXII.,  post . 


chap,  xxiv  AMERICAN  AND  EUROPEAN  SYSTEMS 


213 


dent  J ohnson.  Such  a  people  can  work  any  constitution.  The 
danger  for  them  is  that  this  reliance  on  their  skill  and  their 
star  may  make  them  heedless  of  the  faults  of  their  political 
machinery,  slow  to  devise  improvements  which  are  best  ap¬ 
plied  in  quiet  times. 


CHAPTER  XXV 


GENERAL  OBSERVATIONS  ON  THE  FRAME  OF  NATIONAL 

GOVERNMENT 

The  account  which  has  been  so  far  given  of  the  working 
of  the  American  government  has  been  necessarily  an  account 
rather  of  its  mechanism  than  of  its  spirit.  Its  practical 
character,  its  temper  and  colour,  so  to  speak,  largely  depend 
on  the  party  system  by  which  it  is  worked,  and  on  what  may 
be  called  the  political  habits  of  the  people.  These  will  be 
described  in  later  chapters.  Here,  however,  before  quitting 
the  study  of  the  constitutional  organs  of  government,  it  is 
well  to  sum  up  the  criticisms  we  have  been  led  to  make, 
and  to  add  a  few  remarks,  for  which  no  fitting  place  could 
be  found  in  preceding  chapters,  on  the  general  features  of  the 
National  government. 

I.  No  part  of  the  Constitution  cost  its  framers  so  much 
time  and  trouble  as  the  method  of  choosing  the  President. 
They  saw  the  evils  of  a  popular  vote.  They  saw  also  the 
objections  to  placing  in  the  hands  of  Congress  the  election 
of  a  person  whose  chief  duty  it  was  to  hold  Congress  in  check. 
The  plan  of  having  him  selected  by  judicious  persons,  specially 
chosen  by  the  people  for  that  purpose,  seemed  to  meet  both 
difficulties,  and  was  therefore  recommended  with  confidence. 
The  presidential  electors  have,  however,  turned  out  mere 
ciphers,  and  the  President  is  practically  chosen  by  the  people 
at  large.  The  only  importance  which  the  elaborate  machin¬ 
ery  provided  in  the  Constitution  retains,  is  that  it  prevents 
a  simple  popular  vote  in  which  the  majority  of  the  nation 
should  prevail,  and  makes  the  issue  of  the  election  turn  on  the 
voting  in  certain  “  pivotal  ”  States. 

II.  The  choice  of  the  President,  by  what  is  now  practically 
a  simultaneous  popular  vote,  not  only  involves  once  in  every 
four  years  a  tremendous  expenditure  of  energy,  time,  and 

214 


chap,  xxv  REFLECTIONS  ON  FRAME  OF  GOVERNMENT  215 


money,  but  induces  of  necessity  a  crisis  which,  if  it  happens 
to  coincide  with  any  passion  powerfully  agitating  the  people, 
may  be  dangerous  to  the  commonwealth. 

III.  There  is  always  a  risk  that  the  result  of  a  presidential 
election  may  be  doubtful  or  disputed  on  the  ground  of  error, 
fraud,  or  violence.  When  such  a  case  arises,  the  difficulty  of 
finding  an  authority  competent  to  deal  with  it,  and  likely  to 
be  trusted,  is  extreme.  Moreover,  the  question  may  not  be 
settled  until  the  pre-existing  executive  has,  by  effluxion  of 
time,  ceased  to  have  a  right  to  the  obedience  of  the  citizens. 
The  experience  of  the  election  of  1876  illustrates  these  dan¬ 
gers. 

IV.  The  change  of  the  higher  executive  officers,  and  of 
many  of  the  lower  executive  officers  also,  which  usually  takes 
place  once  in  four  years,  gives  a  jerk  to  the  machinery,  and 
causes  a  discontinuity  of  policy,  unless,  of  course,  the  Presi¬ 
dent  has  served  only  one  term,  and  is  re-elected.  Moreover, 
there  is  generally  a  loss  either  of  responsibility  or  of  efficiency 
in  the  executive  chief  magistrate  during  the  last  part  of  his 
term.  An  outgoing  President  may  possibly  be  a  reckless 
President,  because  he  has  little  to  lose  by  misconduct,  little 
to  hope  from  good  conduct.  He  may  therefore  abuse  his 
patronage,  or  gratify  his  whims  with  impunity.  But  more 
often  he  is  a  weak  President.  He  has  little  influence  with 
Congress,  because  his  patronage  will  soon  come  to  an  end, 
little  hold  on  the  people,  who  are  already  speculating  on  the 
policy  of  his  successor.  His  secretary  of  state  cannot  treat 
boldly  with  foreign  powers,  who  perceive  that  he  has  a  dimin¬ 
ished  influence  in  the  Senate,  and  know  that  the  next  secre¬ 
tary  may  have  different  views. 

The  question  whether  the  United  States,  which  no  doubt 
needed  a  President  in  1789  to  typify  the  then  created  political 
unity  of  the  nation,  might  not  now  dispense  with  one,  has 
never  been  raised  in  America,  where  the  people,  though  dis¬ 
satisfied  with  the  method  of  choice,  value  the  office  because  it 
is  independent  of  Congress  and  directly  responsible  to  the 
people.  Americans  condemn  any  plan  under  which,  as  lately 
befell  in  France,  the  legislature  can  drive  a  President  from 
power  and  itself  proceed  to  choose  a  new  one. 

V.  The  Vice-President’s  office  is  ill-conceived.  His  only 


216 


THE  NATIONAL  GOVERNMENT 


PART  :> 


ordinary  function  is  to  act  as  chairman  of  the  Senate,  but  as 
he  does  not  appoint  the  committees  of  that  House,  and  has  not 
even  a  vote  (expect  a  casting  vote)  in  it,  this  function  is  of 
little  moment.  If,  however,  the  President  dies,  or  becomes 
incapable  of  acting,  or  is  removed  from  office,  the  Vice-Presi¬ 
dent  succeeds  to  the  Presidency.  What  is  the  result  ?  The 
place  being  in  itself  unimportant,  the  choice  of  a  candidate  for 
it  excites  little  interest,  and  is  chiefly  used  by  the  party  man¬ 
agers  as  a  means  of  conciliating  a  section  of  their  party.  It  . 
becomes  what  is  called  “a  complimentary  nomination.”  The 
man  elected  Vice-President  is  therefore  never  a  man  in  the 
front  rank.  But  when  the  President  dies  during  his  term  of 
office,  which  has  happened  to  four  out  of  the  eighteen  Presi¬ 
dents,  this  second-class  man  steps  into  a  great  place  for  which 
he  was  never  intended.  Sometimes,  as  in  the  case  of  J\Ir. 
Arthur,  he  fills  the  place  respectably.  Sometimes,  as  in  that 
of  Andrew  Johnson,  he  throws  the  country  into  confusion. 

He  is  aut  nullus  aut  Ccesar. 

VI.  The  defects  in  the  structure  and  working  of  Congress, 
and  in  its  relations  to  the  executive,  have  been  so  fully  dwelt 
on  already  that  it  is  enough  to  refer  summarily  to  them.  They 
are  — 

The  discontinuity  of  congressional  policy. 

The  want  of  adequate  control  over  officials. 

The  want  of  opportunities  for  the  executive  to  influence  the 
legislature. 

The  want  of  any  authority  charged  to  secure  the  passing  of 
such  legislation  as  the  country  needs. 

The  frequency  of  disputes  between  three  co-ordinate  powers, 
the  President,  the  Senate,  and  the  House. 

The  maintenance  of  a  continuous  policy  is  a  difficulty  in  all 
popular  governments.  In  the  United  States  it  is  specially  so, 
because  — 

The  executive  head  and  his  ministers  are  necessarily  (unless 
when  a  President  is  re-elected)  changed  once  every  four 
years. 

One  House  of  Congress  is  changed  every  two  years. 

Neither  House  recognizes  permanent  leaders. 

No  accord  need  exist  between  Congress  and  the  executive. 


chap,  xxv  REFLECTIONS  ON  FRAME  OF  GOVERNMENT  217 


There  is  no  such  thing  as  a  party  in  power,  in  the  European 
sense  of  the  term,  because  the  party  to  which  the  executive 
belongs  may  be  in  a  minority  in  one  or  both  Houses  of  Con¬ 
gress,  in  which  case  it  cannot  do  anything  which  requires  fresh 
legislation,  —  may  be  in  a  minority  in  the  Senate,  in  which 
case  it  can  take  no  administrative  act  of  importance. 

There  is  little  true  leadership  in  political  action,  because 
the  most  prominent  man  has  no  recognized  party  authority. 
Congress  was  not  elected  to  support  him.  He  cannot  threaten 
disobedient  followers  with  a  dissolution  of  Parliament  like  an 
English  prime  minister.  He  has  not  even  the  French  Presi¬ 
dent’s  right  of  dissolving  the  House  with  the  consent  of  the 
Senate. 

There  is  often  no  general  and  continuous  Cabinet  policy, 
because  the  Cabinet  has  no  authority  over  Congress,  may  per¬ 
haps  have  no  influence  with  it. 

These  defects  are  all  reducible  to  two.  There  is  an  exces¬ 
sive  friction  in  the  American  system,  a  waste  of  force  in  the 
strife  of  various  bodies  and  persons  created  to  check  and  bal¬ 
ance  one  another.  There  is  a  want  of  executive  unity,  and 
therefore  a  possible  want  of  executive  vigour.  Power  is  so 
much  subdivided  that  it  is  hard  at  a  given  moment  to  con¬ 
centrate  it  for  prompt  and  effective  action.  In  fact,  this 
happens  only  when  a  distinct  majority  of  the  people  are  so 
clearly  of  one  mind  that  the  several  co-ordinate  organs  of 
government  obey  this  majority,  uniting  their  efforts  to  serve 
its  will. 

VII.  There  are  four  essentials  to  the  excellence  of  a  repre¬ 
sentative  system :  — 

That  the  representatives  shall  be  chosen  from  among  the 
best  men  of  the  country,  and,  if  possible,  from  its 
natural  leaders. 

That  they  shall  be  strictly  and  palpably  responsible  to  their 
constituents  for  their  speeches  and  votes. 

That  they  shall  have  courage  enough  to  resist  a  momentary 
impulse  of  their  constituents  which  they  think  mis¬ 
chievous,  i.e.  shall  be  representatives  rather  than  mere 
delegates. 

That  they  individually,  and  the  chamber  they  form,  shall 


218 


THE  NATIONAL  GOVERNMENT 


PART  I 


have  a  reflex  action  on  the  people,  i.e.  that  while  they 
derive  authority  from  the  people,  they  shall  also  give 
the  people  the  benefit  of  the  experience  they  acquire  in 
the  chamber,  as  well  as  of  the  superior  knowledge  and 
capacity  they  may  be  presumed  to  possess. 

Americans  hold,  and  no  doubt  correctly,  that  of  these  four 
requisites,  the  first,  third,  and  fourth  are  not  attained  in  their 
country.  Congressmen  are  not  chosen  from  among  the  best 
citizens.  They  mostly  deem  themselves  mere  delegates.  They 
do  not  pretend  to  lead  the  people,  being  indeed  seldom  spe¬ 
cially  qualified  to  do  so. 

That  the  second  requisite,  responsibility,  is  not  fully  real¬ 
ized  seems  surprising  in  a  democratic  country,  and  indeed 
almost  inconsistent  with  that  conception  of  the  representa¬ 
tive  as  a  delegate,  which  is  supposed,  perhaps  erroneously, 
to  be  characteristic  of  democracies.  Still  the  fact  is  there. 
One  cause,  already  explained,  is  to  be  found  in  the  committee 
system.  Another  is  the  want  of  organized  leadership  in  Con¬ 
gress.  In  Europe,  a  member’s  responsibility  takes  the  form 
of  his  being  bound  to  support  the  leader  of  his  party  on  all 
important  divisions.  In  America,  this  obligation  attaches 
only  when  the  party  has  “  gone  into  caucus,”  and  there 
resolved  upon  its  course.  Not  having  the  right  to  direct,  the 
leader  cannot  be  held  responsible  for  the  action  of  the  rank 
and  file.  As  a  third  cause  we  may  note  the  fact  that  owing  to 
the  restricted  competence  of  Congress  many  of  the  questions 
which  chiefly  interest  the  voter  do  not  come  before  Congress 
at  all,  so  that  its  proceedings  are  not  followed  with  that  close 
and  keen  attention  which  the  debates  and  divisions  of  Euro¬ 
pean  chambers  excite. 

In  general  the  reciprocal  action  and  reaction  between  the 
electors  and  Congress,  what  is  commonly  called  the  “  touch  ” 
of  the  people  with  their  agents,  is  not  sufficiently  close,  quick, 
and  delicate.  Representatives  ought  to  give  light  and  leading 
to  the  people,  just  as  the  people  give  stimulus  and  momentum 
to  their  representatives.  This  incidental  merit  of  the  parlia¬ 
mentary  system  is  among  its  greatest  merits.  But  in  America 
the  action  of  the  voter  fails  to  tell  upon  Congress.  He  votes 
for  a  candidate  of  his  own  party,  but  he  does  not  convey  to  that 


ciiap.  xxv  REFLECTIONS  ON  FRAME  OF  GOVERNMENT  219 


candidate  an  impulse  towards  the  carrying  of  particular  meas¬ 
ures,  because  the  candidate  when  in  Congress  will  be  practi¬ 
cally  unable  to  promote  those  measures,  unless  he  happens  to 
be  placed  on  the  committee  to  which  they  are  referred. 
Hence  the  citizen,  when  he  casts  his  ballot,  can  seldom  feel 
that  he  is  advancing  any  measure  or  policy,  except  the  vague 
and  general  policy  indicated  in  his  party  platform.  He  is 
voting  for  a  party,  but  he  does  not  know  what  the  party  will 
do,  and  for  a  man,  but  a  man  whom  chance  may  deprive  of 
the  opportunity  of  advocating  the  measures  he  cares  most  for. 

Conversely,  Congress  does  not  guide  and  illuminate  its  con¬ 
stituents.  It  is  amorphous,  and  has  little  initiative.  It  does 
not  focus  the  light  of  the  nation,  does  not  warm  its  imagination, 
does  not  dramatize  principles  in  the  deeds  and  characters  of 
men.1  This  happens  because,  in  ordinary  times,  it  lacks  great 
leaders,  and  the  most  obvious  cause  why  it  lacks  them,  is  its 
disconnection  from  the  executive.  As  it  is  often  devoid  of 
such  men,  so  neither  does  the  country  habitually  come  to  it  to 
look  for  them.  In  the  old  days,  neither  Hamilton,  nor  Jeffer¬ 
son,  nor  John  Adams ;  in  our  own  time,  neither  Stanton,  nor 
Grant,  nor  Tilden,  nor  Cleveland,  ever  sat  in  Congress.  Lin¬ 
coln  sat  for  two  years  only,  and  owed  little  of  his  subsequent 
eminence  to  his  career  there. 

VIII.  The  independence  of  the  judiciary,  due  to  its  holding 
for  life,  has  been  a  conspicuous  merit  of  the  Federal  system, 
as  compared  with  the  popular  election  and  short  terms  of 
judges  in  most  of  the  States.  Yet  even  the  Federal  judiciary 
is  not  secure  from  the  attacks  of  the  two  other  powers,  if 
combined.  For  the  legislature  may  by  statute  increase  the 
number  of  Federal  justices,  increase  it  to  any  extent,  since  the 
Constitution  leaves  the  number  undetermined,  and  the  Presi¬ 
dent  may  appoint  persons  whom  he  knows  to  be  actuated  by 
a  particular  political  bias,  perhaps  even  prepared  to  decide 
specific  questions  in  a  particular  sense.  Thus  he  and  Congress 

'  1  As  an  illustration  of  the  want  of  the  dramatic  element  in  Congress,  I  may 
mention  that  some  at  least  of  the  parliamentary  debating  societies  in  the 
American  colleges  (colleges  for  women  included)  take  for  their  model  not 
either  House  of  Congress  but  the  British  House  of  Commons,  the  students 
conducting  their  debates  under  the  names  of  prominent  members  of  that  as¬ 
sembly.  They  say  that  they  do  this  because  Congress  has  no  ministry  and  no 
leaders  of  the  Opposition. 


220 


THE  NATIONAL  GOVERNMENT 


PART  I 


together  may  obtain  such  a  judicial  determination  of  any  con¬ 
stitutional  question  as  they  join  in  desiring,  even  although 
that  question  has  been  heretofore  differently  decided  by  the 
Supreme  Court.  The  only  safeguard  is  in  the  disapproval  of 
the  people. 

All  the  main  features  of  American  government  may  be 
deduced  from  two  principles.  One  is  the  sovereignty  of  the 
people,  which  expresses  itself  in  the  fact  that  the  supreme  law 
—  the  Constitution  —  is  the  direct  utterance  of  their  will,  that 
they  alone  can  amend  it,  that  it  prevails  against  every  other 
law,  that  whatever  powers  it  does  not  delegate  are  deemed  to 
be  reserved  to  it,  that  every  power  in  the  State  draws  its 
authority,  whether  directly,  like  the  House  of  Representatives, 
or  in  the  second  degree,  like  the  President  and  the  Senate, 
or  in  the  third  degree,  like  the  Federal  judiciary,  from  the 
people,  and  is  legally  responsible  to  the  people,  and  not  to  any 
one  of  the  other  powers. 

The  second  principle,  itself  a  consequence  of  this  first  one, 
is  the  distrust  of  the  various  organs  and  agents  of  government. 
The  States  are  carefully  safeguarded  against  aggression  by  the 
central  government.  So  are  the  individual  citizens.  Each 
organ  of  government,  the  executive,  the  legislature,  the  judi¬ 
ciary,  is  made  a  jealous  observer  and  restrainer  of  the  others. 
Since  the  people,  being  too  numerous,  cannot  directly  manage 
their  affairs,  but  must  commit  them  to  agents,  they  have  re¬ 
solved  to  prevent  abuses  by  trusting  each  agent  as  little  as 
possible,  and  subjecting  him  to  the  oversight  of  other  agents, 
who  will  harass  and  check  him  if  he  attempts  to  overstep  his 
instructions. 

Every  Constitution,  like  every  man,  has  “the  defects  of  its 
good  qualities.”  If  a  nation  desires  perfect  stability  it  must 
put  up  with  a  certain  slowness  and  cumbrousness  ;  it  must  face 
the  possibility  of  a  want  of  action  where  action  is  called  for. 
If,  on  the  other  hand,  it  seeks  to  obtain  executive  speed  and 
vigour  by  a  complete  concentration  of  power,  it  must  run  the 
risk  that  power  will  be  abused  and  irrevocable  steps  too  hastily 
taken.  “The  liberty-loving  people  of  every  country,”  says 
Judge  Cooley,1  “take  courage  from  American  freedom,  and 


1  Address  to  the  South  Carolina  Bar  Association,  December  1886. 


chap,  xxv  REFLECTIONS  ON  FRAME  OF  GOVERNMENT  221 


find  augury  of  better  days  for  themselves  from  American 
prosperity.  But  America  is  not  so  much  an  example  in  her 
liberty  as  in  the  covenanted  and  enduring  securities  which  are 
intended  to  prevent  liberty  degenerating  into  licence,  and  to 
establish  a  feeling  of  trust  and  repose  under  a  beneficent 
government,  whose  excellence,  so  obvious  in  its  freedom,  is 
still  more  conspicuous  in  its  careful  provision  for  permanence 
and  stability.”  Those  faults  on  which  I  have  laid  stress,  the 
waste  of  power  by  friction,  the  want  of  unity  and  vigour  in 
the  conduct  of  affairs  by  executive  and  legislature,  are  the 
price  which  the  Americans  pay  for  the  autonomy  of  their 
States,  and  for  the  permanence  of  the  equilibrium  among  the 
various  branches  of  their  government.  They  pay  this  price 
willingly,  because  these  defects  are  far  less  dangerous  to  the 
body  politic  than  they  would  be  in  a  European  country.  Take 
for  instance  the  shortcomings  of  Congress  as  a  legislative 
authority.  Every  European  country  is  surrounded  by  diffi¬ 
culties  which  legislation  must  deal  with,  and  that  promptly. 
But  in  America,  where  those  relics  of  mediaeval  privilege  and 
injustice  that  still  cumber  most  parts  of  the  Old  World  either 
never  existed,  or  were  long  ago  abolished,  where  all  the  con¬ 
ditions  of  material  prosperity  exist  in  ample  measure,  and  the 
development  of  material  resources  occupies  men’s  minds,  where 
nearly  all  social  reforms  lie  within  the  sphere  of  State  action, 
—  in  America  there  is  less  need  and  less  desire  than  in  Europe 
for  a  perennial  stream  of  Federal  legislation.  People  are  con¬ 
tented  if  things  go  on  fairly  well  as  they  are.  Political  philos¬ 
ophers,  or  philanthropists,  perceive  not  a  fewT  improvements 
which  Federal  statutes  might  effect,  but  the  mass  of  the  nation 
does  not  complain,  and  the  wise  see  Congress  so  often  on  the 
point  of  committing  mischievous  errors  that  they  do  not  deplore 
the  barrenness  of  session  after  session. 

Every  European  State  has  to  fear  not  only  the  rivalry  but 
the  aggression  of  its  neighbours.  Even  Britain,  so  long  safe 
in  her  insular  home,  has  lost  some  of  her  security  by  the 
growth  of  steam  navies,  and  has  in  her  Indian  and  colonial 
possessions  given  pledges  to  Fortune  all  over  the  globe.  She, 
like  the  Powers  of  the  European  continent,  must  maintain 
her  system  of  government  in  full  efficiency  for  war  as  well 
as  for  peace,  and  cannot  afford  to  let  her  armaments  decline, 


222 


THE  NATIONAL  GOVERNMENT 


PART  I 


her  finances  become  disordered,  the  vigour  of  her  executive 
authority  be  impaired,  sources  of  internal  discord  continue  to 
prey  upon  her  vitals.  But  America  lives  in  a  world  of  her 
own.  Safe  from  attack,  safe  even  from  menace,  she  hears  from 
afar  the  warring  cries  of  European  races  and  faiths. 

Had  Canada  or  Mexico  grown  to  be  a  great  power,  had  France 
not  sold  Louisiana,  or  had  England,  rooted  on  the  American 
continent,  become  a  military  despotism,  the  United  States 
could  not  indulge  the  easy  optimism  which  makes  them  toler¬ 
ate  the  faults  of  their  government.  As  it  is,  that  which  might 
prove  to  a  European  State  a  mortal  disease  is  here  nothing 
worse  than  a  teasing  ailment.  Since  the  War  of  Secession 
ended,  no  serious  danger  has  arisen  either  from  within  or  from 
without  to  alarm  American  statesmen.  Social  convulsions 
from  within,  warlike  assaults  from  without,  seem  now  as 
unlikely  to  try  the  fabric  of  the  American  Constitution  as  an 
earthquake  to  rend  the  walls  of  the  Capitol.  This  is  why  the 
Americans  submit,  not  merely  patiently  but  hopefully,  to  the 
defects  of  their  government.  The  vessel  may  not  be  any  better 
built,  or  found,  or  rigged  than  are  those  which  carry  the  fort¬ 
unes  of  the  great  nations  of  Europe.  She  is  certainly  not 
better  navigated.  But  for  the  present  at  least  —  it  may  not 
always  be  so  —  she  sails  upon  a  summer  sea. 

It  must  never  be  forgotten  that  the  main  object  which  the 
framers  of  the  Constitution  set  before  themselves  has  been 
achieved.  When  Sieyes  was  asked  what  he  had  done  during 
the  Beign  of  Terror,  he  answered,  “  I  lived.”  The  Constitu¬ 
tion  as  a  whole  has  stood  and  stands  unshaken.  The  scales 
of  power  have  continued  to  hang  fairly  even.  The  President 
has  not  corrupted  and  enslaved  Congress :  Congress  has  not 
paralyzed  and  cowed  the  President.  The  legislative  may  have 
gained  somewhat  on  the  executive  department;  yet  were 
George  Washington  to  return  to  earth,  he  might  be  as  great 
and  useful  a  President  as  he  was  a  century  ago.  Neither  the 
legislature  nor  the  executive  has  for  a  moment  threatened 
the  liberties  of  the  people.  The  States  have  not  broken  up  the 
Union,  and  the  Union  has  not  absorbed  the  States.  No  wonder 
that  the  Americans  are  proud  of  an  instrument  under  which 
this  great  result  has  been  attained,  which  has  passed  unscathed 
through  the  furnace  of  civil  war,  which  has  been  found  capable 


chap,  xxv  REFLECTIONS  ON  FRAME  OF  GOVERNMENT  223 


of  embracing  a  body  of  commonwealths  more  than  three  times 
as  numerous,  and  with  twenty-fold  the  population  of  the  origi¬ 
nal  States,  which  has  cultivated  the  political  intelligence  of 
the  masses  to  a  point  reached  in  no  other  country,  which  has 
fostered  and  been  found  compatible  with  a  larger  measure  of 
local  self-government  than  has  existed  elsewhere.  Nor  is  it 
the  least  of  its  merits  to  have  made  itself  beloved.  Objections 
may  be  taken  to  particular  features,  and  these  objections  point, 
as  most  American  thinkers  are  agreed,  to  practical  improve¬ 
ments  which  would  preserve  the  excellences  and  remove  some 
of  the  inconveniences.  But  reverence  for  the  Constitution  has 
become  so  potent  a  conservative  influence,  that  no  proposal  of 
fundamental  change  seems  likely  to  be  entertained.  And  this 
reverence  is  itself  one  of  the  most  wholesome  and  hopeful  ele¬ 
ments  in  the  character  of  the  American  people. 


CHAPTER  XXYI 

THE  FEDERAL  SYSTEM 

Having  examined  the  several  branches  of  the  National  gov¬ 
ernment  and  the  manner  in  which  they  work  together,  we  may 
now  proceed  to  examine  the  American  commonwealth  as  a 
federation  of  States.  The  present  chapter  is  intended  to  state 
concisely  the  main  features  which  distinguish  the  Federal 
system,  and  from  which  it  derives  its  peculiar  character. 
Three  other  chapters  will  describe  its  practical  working,  and 
summarize  the  criticisms  that  may  be  passed  upon  it. 

The  contests  in  the  Convention  of  1787  over  the  framing  of 
the  Constitution,  and  in  the  country  over  its  adoption,  turned 
upon  two  points  ithe  extent  to  which  the  several  States  should 
be  recognized  as  independent  and  separate  factors  in  the  con¬ 
struction  of  the  National  government,  and  the  quantity  and 
nature  of  the  powers  which  should  be  withdrawn  from  the 
States  to  be  vested  in  that  government.  It  has  been  well  re¬ 
marked  that  “  the  first  of  these,  the  definition  of  the  structural 
powers,  gave  more  trouble  at  the  time  than  the  second,  because 
the  line  of  partition  between  the  powers  of  the  States  and  the 
Eederal  government  had  been  already  fixed  by  the  whole  expe¬ 
rience  of  the  country.”  But  since  1791  there  has  been  pi  ac¬ 
tually  no  dispute  as  to  the  former  point,  and  little  as  to  the 
propriety  of  the  provisions  which  define  the  latter.  On  the 
interpretation  of  these  provisions  there  has,  however,  been 
endless  debate,  some  deeming  the  Constitution  to  have  taken 
more  from  the  States,  some  less;  while  still  warmer  contro¬ 
versies  have  raged  as  to  the  matters  which  the  instrument 
does  not  expressly  deal  with,  and  particularly  whether  the 
States  retain  their  sovereignty,  and  with  it  the  right  of  nullify¬ 
ing  or  refusing  to  be  bound  by  certain  acts  of  the  National  gov- 

224 


CIIAP.  XXVI 


THi  Federal  system 


225 


ernmenU  and  indie  last  resort  of  withdrawing  from  the  Union. 
As  these  latte"  questions  (nullification  and  secession)  have  now 
been  settled by  the  Civil  War,  we  may  say  that  in  the  America 
of  to-dgr  there  exists  a  general  agreement  — 


Tlat  every  State  on  entering  the  Union  finally  renounced  its 


soTereignty,  and  is  now  for  ever  subject  to  the  Federal  author¬ 
ity  as -defined  by  the  Constitution. 

J  <rbiat  the  functions  of  the  States  as  factors  of  the  National 
government  are  satisfactory,  i.e.  sufficiently  secure  its  strength 
and  ,he  dignity  of  these  communities. 

Tl^'-t^he  delimitation  of  powers  between  the  National  gov- 
ernna&itj  and  the  States,  contained  in  the  Constitution,  is  con¬ 
venient,  and  needs  no  fundamental  alteration. 

•  which  we  have  to  tread  during  the  remainder  of 

this  chipter  is  therefore  no  longer  controversial  ground,  but 
that  of  veil-established  law  and  practice. 

1.  Tl£  distribution  of  powers  between  the  National  and  the 
State  governments  is  effected  in  two  ways  —  Positively,  by  con¬ 
ferring  certain  powers  on  the  National  government;  Negatively, 
by  impos./ig  certain  restrictions  on  the  States.  It  would  have 
been  superfluous  to  confer  any  powers  on  the  States,  because 
they  retail  all  powers  not  actually  taken  from  them.  A 
lawyer  ma;  think  that  it  was  equally  unnecessary  and,  so  to 
speak,  inarfstic,  to  lay  any  prohibitions  on  the  National  gov¬ 
ernment, 'because  it  could  ex  hyjiothesi  exercise  no  powers  not 
expressly  grmted.  However,  the  anxiety  of  the  States  to  fet¬ 
ter  the  masfir  they  were  giving  themselves  caused  the  intro¬ 
duction  of  povisiqnsjiqualifying  the  grant  of  express  powers, 
and  interdicting  the  National  government  from  various  kinds 
of  action  on  v  cch  it  might  otherwise  have  been  tempted  to 
enter.  TheJmkier  is  further  complicated  by  the  fact  that  the 
grant  of  power,do  the  National  government  is  not  in  all  cases 
an  exclusive  gSnt :  i.e.  there  are  matters  which  both,  or  either, 
the  States  ana  die  National  government  may  deal  with.  “  The 
mere  grant  of  v  power  to  Congress  does  not  of  itself,  in  most 
cases,  imply  a  prohibition  upon  the  States  to  exercise  "the  like 
power.  ...  It  is  not  the  mere  existence  of  the  National 
power,  but  ilsR^Kircise,  which  is  incompatible  with  the  exercise 
of  the  same  pVwer  by  the  States.”  Thus  we  may  distinguish 
the  foliowiig,  classes  of  governmental  powers :  — 


226 


THE  NATIONAL  GOVERNMENT 

!£- 


PART  1 


- -  rs 

Powers  vested  in  the  National  governments  one. 


Powers  vested  in  the  States  alone. 

Powers  exercisable  by  either  the  National  government  or 


the  States. 


Powers  forbidden  to  the  National  government. 

Powers  forbidden  to  the  State  governments. 

It  might  be  thought  that  the  two  latter  classes  are  super¬ 
fluous,  because  whatever  is  forbidden  to  the  National  go'vern- 
ment  must  be  permitted  to  the  States,  and  conversely,  whatever 
is  forbidden  to  the  States  must  be  permitted  to  the  National 
government.  But  this  is  not  so.  For  instance,  Congress  can 
grant  no  title  of  nobility  (Art.  i.  §  9).  But  neither  can  a  State 
do  so  (Art.  i.  §  10).  The  National  government  canno  take 
private  property  for  public  use  without  just  compeisation 
(Amendment  v.).  Apparently  neither  can  any  State  do  so 
(Amendment  xiv.  as  interpreted  in  several  cases).  So  no 
State  can  pass  any  law  impairing  the  obligation  of  a  ontract 
(Art.  i.  §  10).  But  the  National  government,  althoigh  not 
subject  to  a  similar  direct  prohibition,  has  received  m  general 
power  to  legislate  as  regards  ordinary  contracts,  aid  might 
therefore  in  some  cases  find  itself  equally  unable  to  mss  a  law 
which  a  State  legislature,  though  for  a  different  rerson,  could 
not  pass.1  So  no  State  can  pass  any  ea;  post  facto  lav.  Neither 

can  Congress.  >  “  , 

What  the  Constitution  has  done  is  not  to  cut  m  nail  the  to¬ 
tality  of  governmental  functions  and  powers,  giving  Part  to  tlie 
National  government  and  leaving  all  the  rest  to  tie  States,  but 
to  divide  up  this  totality  of  authority  into  a  nunber  of  parts 
which  do  not  exhaust  the  whole,  but  leave  £  residuum  oi 
powers  neither  granted  to  the  Union  nor  Cytmued  to  the 
States  but  reserved  to  the  people,  who,  howeyfy  can  put  them 
in  force  only  by  the  difficult  process  of  amendiig  the  Constitu¬ 
tion.  In  other  words,  there  are  things  in  America  which  there 
exists  no  organized  and  permanent  authority  capable  of  lega  y 
doing,  not  a  State,  because  it  is  expressly  forlidden,  not  the 
National  government,  because  it  either  has  n?t  receiyefl  tie 
competence  or  has  been  expressly  forbidden. 

1  Of  course  Congress  can  legislate  regarding  some  contracts,  and  can  impair 
their  obligation.  It  lias  power  to  regulate  commerce,  it  cm  pass  bankrupt 
laws,  it  can  make  paper  money  legal  tender. 


THE  FEDERAL  SYSTEM 


227 


IX-  The  powers  vested  in  the  National  government  alone 
aie  such  as  relate  to  the  conduct  of  the  foreign  relations  of 
the  country  and  to  such  common  National  purposes  as  the 
army  and  navy,  interstate  commerce,  currency,  and  the  post- 
office,  with  provisions  for  the  management  of  the  machinery, 
legislative,  executive,  and  judicial,  charged  with  these  pur¬ 
poses.1 

The  powers  which  remain  vested  in  the  States  alone  are  all 
the  other  ordinary  powers  of  internal  government,  such  as 
legislation  on  private  law,  civil  and  criminal,  the  maintenance 
of  law  and  order,  the  creation  of  local  institutions,  the  pro¬ 
vision  for  education  and  the  relief  of  the  poor,  together  with 
taxation  for  the  above  purposes. 

III.  The  powers  which  are  exercisable  concurrently  by  the 
National  government  and -by  the  States  are  — 

Powers  of  legislation  on  some  specified  subjects,  such  as 
bankruptcy  and  certain  commercial  matters  ( e.g .  pilot  laws 
and  harbour  regulations),  but  so  that  State  legislation  shall 
take  effect  only  in  the  absence  of  Federal  legislation. 

Powers  of  taxation,  direct  or  indirect,  but  so  that  neither 
Congress  nor  a  State  shall  tax  exports  from  any  State,  and 
so  that  neither  any  State  shall,  except  with  the  consent  of 
Congress,  tax  any  corporation  or  other  agency  created  for 
Federal  purposes  or  any  act  done  under  Federal  authority, 
nor  the  National  government  tax  any  State  or  its  agencies  or 
property. 

Judicial  powers  in  certain  classes  of  cases  where  Congress 
might  have  legislated,  but  has  not,  or  where  a  party  to  a  suit 
has  a  choice  to  proceed  either  in  a  Federal  or  a  State  court. 

Powers  of  determining  matters  relating  to  the  election  of 
representatives  and  senators  (but  if  Congress  determines,  the 
State  law  gives  away). 

X  •  j-he  prohibitions  imposed  on  the  National  government 
are  set  forth  in  Art.  i.  §  9,  and  in  the  first  ten  amendments. 

The  mosti important  are  — 

Writ  M  habeas  corpus  may  not  be  suspended,  nor  bill  of 
attaind*^^.*  ex  post  facto  law  passed.2 

8,  Art.  ii.  §  2,  Art.  iii.  §  2,  Art.  iv.  §§  3  and  4;  Amendments 
jhe  Consti tutioL . 

law  ”  is  deemed  to  refer  to  criminal  laws  only. 


1  See 
xiii.,  xivj 

2  Tho 


228 


THE  NATIONAL  GOVERNMENT 


PART  1 


No  commercial  preference  shall  be  given  to  one  State  over 
another. 

No  title  of  nobility  shall  be  granted. 

No  law  shall  be  passed  establishing  or  prohibiting  any  relig¬ 
ion,  or  abridging  the  freedom  of  speech  or  of  the  press,  or  o 

public  meeting  or  of  bearing  arms.  . 

.  No  religious  test  shall  be  required  as  a  qualification  for  any 

office  under  the  United  States.  >  . 

No  person  shall  be  tried  for  a  capital  or  otherwise  infamous 

crime  unless  on  the  presentment  of  a  grand  jury,  or  be  sub¬ 
jected  to  a  second  trial  for  the  same  offence,  or  be  compelled 
to  be  a  witness  against  himself,  or  be  tried  otherwise  than  by 

a  jury  of  his  State  and  district. 

No  common  law  action  shall  be  decided  except  by  a  jury 
where  the  value  in  dispute  exceeds  $20,  and  no  fact  determinec 
by  a  jury  shall  be  re-examined  otherwise  than  by  the  rules  of 

the  common  law.1  .  . 

Y.  The  prohibitions  imposed  on  the  States  are  contained  m 

Art.  i.  §  10,  and  in  the  three  latest  amendments.  They  are 
intended  to  secure  the  National  government  against  attempts 
by  the  States  to  trespass  on  its  domain,  and  to  protect  individ¬ 
uals  against  oppressive  legislation. 

No  State  shall  —  Make  any  treaty  or  alliance:  com  money: 
make  anything  but  gold  and  silver  coin  a  legal  tender :  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  ob¬ 
ligation  of  contracts :  grant  any  titles  of  nobility. 

"No  State  shall  without  the  consent  of  Congress  —  Lay  duties 
on  exports  or  imports  (the  produce  of  such,  if  laid,  going  to  the 
National  treasury)  :  keep  troops  or  ships  of  war  in  time  of  peace  : 
enter  into  an  agreement  with  another  State  or  with  any  foreign 
power :  engage  in  war,  unless  actually  invaded  or  in  imminent 

danger  s  a 

Every  State  must  —  Give  credit  to  the  records  and^judicial 

proceedings  of  every  other  State  :  extend  the  privileges  and 
immunities  of  citizens  to  the  citizens  of  other  State^:  deliver 
up  fugitives  from  justice  t*o  the  State  entitled  to  cla^^  them. 
No&State  shall  have  any  but  a  republican  form  of  a»rnment. 
No  State  shall  —  Maintain  slavery:  abridge  tffi^^ivileges 


1  Chiefly  inte.^ed  to  prevent  the  method;*  of  courts  of 
applied  in  the  Federal  courts  agaiDst  the  findings  of  a^ 


bn  being 


of  any  citizen  of  the  Unit  bates,  or  deny  to  him  the  right 
of  voting,  in  respect  of  race,  colour,  or  previous  servitude : 


CIIAP.  XXVI 


THE  F  AL  SYSTEM 

j 


229 


deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law:  deny  to  any  person  the  equal  protection  of 
the  laws. 

Note  that  this  list  contains  no  prohibition  to  a  State  to  do 
any  of  the  following  things  :  —  Establish  a  particular  form  of 
religion :  endow  a  particular  form  of  religion,  or  educational  or 
charitable  establishments  connected  therewith:  abolish  trial 
by  jury  in  criminal  or  civil  cases:  suppress  the  freedom  of 
speaking,  writing,  and  meeting  (provided  that  this  be  done 
equally  as  between  different  classes  of  citizens,  and  provided 
also  that  it  be  not  done  to  such  an  extent  as  to  amount  to  a 
deprivation  of  liberty  without  due  process  of  law) :  limit  the 
electoral  franchise  to  any  extent:  extend  the  electoral  fran¬ 
chise  to  women,  minors,  aliens. 

These  omissions  are  significant.  They  show  that  the  framers 
of  the  Constitution  had  no  wish  to  produce  uniformity  among 
the  States  in  government  or  institutions,  and  little  care  to  pro¬ 
tect  the  citizens  against  abuses  of  State  power.1  They  were 
content  to  trust  for  this  to  the  provisions  of  the  State  Consti¬ 
tutions.  Their  chief  aim  was  to  secure  the  National  govern¬ 
ment  against  encroachments  on  the  part  of  the  States,  and  to 
prevent  causes  of  quarrel  both  between  the  central  and  State 
authorities  and  between  the  several  States.  The  result  has, 
on  the  whole,  justified  their  action.  So  far  from  abusing  their 
power  of  making  themselves  unlike  one  another,  the  States 
have  tended  to  be  too  uniform,  and  have  made  fewer  experi¬ 
ments  in  institutions  than  one  could  wish. 

VI.  The  powers  vested  in  each  State  are  all  of  them  original 
and  inherent  powers,  which  belonged  to  the  State  before  it  en¬ 
tered  the  Union.  Hence  they  are  prima  fade  unlimited,  and 
if  a  question  arises  as  to  any  particular  power,  it  is  presumed 
to  be  enjoyed  by  the  State,  unless  it  can  be  shown  to  have  been 
taken  away  by  the  Federal  Constitution ;  or,  in  other  words,  a 
State  is  not  deemed  to  be  subject  to  any  restriction  which  the 
Constitution  has  not  distinctly  imposed. 

1  The  fourteenth  and  fifteenth  amendments  are  in  this  respect  a  novelty. 
The  only  restrictions  of  this  kind  to  he  found  in  the  instrument  of  1789  are 
those  relating  to  contracts  and  ex  vost  facto  laws. 


PAKT  I 


THE  NATIONAL  GOVERNMENT 


The  powers  granted  to  the  National  government  are  dele¬ 
gated  powers,  enumerated  in  and  defined  by  the  instrument 
which  has  created  the  Union.  Hence  the  rule  that  when  a 
question  arises  whether  the  National  government  possesses  a 
particular  power,  proof  must  be  given  that  the  power  was  pos¬ 
itively  granted.  If  not  granted,  it  is  not  possessed,  because 
the  Union  is  an  artificial  creation,  whose  government  can  have 
nothing  but  what  the  people  have  by  the  Constitution  conferred. 
The  presumption  is  therefore  against  the  National  govern¬ 
ment  in  such  a  case,  just  as  it  is  for  the  State  in  a  like  case. 

VII.  The  authority  of  the  National  government  over  the 
citizens  of  every  State  is  direct  and  immediate,  not  exerted 
through  the  State  organization,  and  not  requiring  the  co-opera¬ 
tion  of  the  State  government.  For  most  purposes  the  National 
government  ignores  the  States  ^  and  it  treats  the  citizens  of 
different  States  as  being  simply  its  own  citizens,  equally  bound 
by  its  laws.  The  Federal  courts,  revenue  officers,  and  post- 
office  draw  no  help  from  any  State  officials,  but  depend  directly 
on  Washington.  Hence,  too,  of  course,  there  is  no  local  self- 
government  in  Federal  matters.  No  Federal  official  is  elected 
by  the  people  of  any  local  area.  Local  government  is  purely 
a  State  affair. 

On  the  other  hand,  the  State  in  no  wise  depends  on  the 
National  government  for  its  organization  or  its  effective  work¬ 
ing.  It  is  the  creation  of  its  own  inhabitants.  They  have 
given  it  its  Constitution.  They  administer  its  government.  It 
goes  on  its  own  way,  touching  the  National  government  at  but 
few  points.  That  the  two  should  touch  at  the  fewest  possible 
points  was  the  intent  of  those  who  framed  the  Federal  Consti¬ 
tution,  for  they  saw  that  the  less  contact,  the  less  danger  of 
collision.  Their  aim  was  to  keep  the  two  mechanisms  as  dis¬ 
tinct  and  independent  of  each  other  as  was  compatible  with 
the  still  higher  need  of  subordinating,  for  National  purposes, 
the  State  to  the  central  government.  % 

VIII.  It  is  a  further  consequence  of  this  principle  that  the 
National  government  has  but  little  to  do  with  the  States  as 
States.  Its  relations  are  with  their  citizens,  who  are  also  its 
citizens,  rather  than  with  them  as  ruling  commonwealths.  In 
the  following  points,  however,  the  Constitution  does  require 
certain  services  of  the  States :  — 


\ 


CHAP.  XXVI  THE  FEDERAL  SYSTEM 


231 


It  requires  eachJState  government  to  direct  the  choice  of, 
and  accredit  to  the  seat  of  the  National  government,  two 
senators  and  se'  many  representatives  as  the  State  is  entitled 
to~s§ird. 

squires  similarly  that  presidential  electors  be  chosen, 
and  vote  in  the  States,  and  that  their  vofes  be  trans- 
to  the  National  capital. 

requires  each  State  to  follow  regulations  prescribed  by 
|ess  when  organizing  and  arming  its  militia,  which,  when 
loned  for  active  service,  are  placed  under  the  com¬ 
mand  of  the  President. 

It  requires  each  State  to  maintain  a  republican  form  of 
government.  (Conversely,  a  State  may  require  the  National 
government  to  protect  it  against  invasion  or  domestic  violence.) 

IX.  A  jstaite  is,  within  its  proper  sphere,  just  as  legally 
supreme},’ just  as  well  entitled  to  give  effect  to  its  own  will,  as 
is  the' National  government  within  its  sphere;  and  for  the 
same  reason  All  authority  flows  from  the  people.  The  peo¬ 
ple  have  giveh  part  of  their  supreme  authority  to  the  National, 
part  to  the  State  governments.  Both  hold  by  the  same  title, 
and  therefore  the  National  government,  although  superior 
wherever  there  is  a  concurrence  of  powers,  has  no  more  right 
to  trespass  upon  the  domain  of  a  State  than  a  State  has  upon 
the  domain  of  Pederal  action.  That  the  course  which  a  State 
is  following  is  pernicious,  that  its  motives  are  bad  and  its  sen¬ 
timents  disloyal  to  the  Union,  makes  no  difference  until  or 
unless  it  infringes  on  the  sphere  of  Pederal  authority.  It 
may  be  thought  that  however  distinctly  this  may  have  been 
laid  down  as  a  matter  of  theory,  in  practice  the  State  will  not 
obtain  the  same  justice  as  the  National  government,  because 
the  court  which  decides  points  of  law  in  dispute  between  the 
two  is  in  the  last  resort  a  Pederal  court,  and  therefore  biassed 
in  favour  of  the  Pederal  government.  In  fact,  however,  little 
or  no  unfairness  has  arisen  from  this  cause.  The  Supreme 
Court  may,  as  happened  for  twenty  years  before  the  War  of 
Secession,  be  chiefly  composed  of  States’  Bights  men.  In  any 
case  the  court  cannot  stray  far  from  the  path  which  previous 
decisions  have  marked  out. 

X.  There  are  several  remarkable  omissions  in  the  Consti¬ 
tution  of  the  American  federation. 


I 


232 


THE  NATIONAL 


PART  I 


One  is  tliat  there  is  no  grant  of  power  to  the  National  gov¬ 
ernment  to  coerce  a  recalcitrant  or  rebellious  State.  Another 
is  that  nothing  is  said  as  to  the  right  of  secession.  Any  one 
can  understand  why  this  right  should  not  have  -been  granted. 
But  neither  is  it  mentioned  to  be  negatived. 

The  Constitution  was  an  instrument  of  compromisefl 
these  were  questions  which  it  would  have  been  unvl 


raise. 


There  is  no  abstract  or  theoretic  declaration  regard!  | 
nature  of  the  federation  and  its  government,  nothing  as 
ultimate  supremacy  of  the  central  authority  outside  the  partic¬ 
ular  sphere  allotted  to  it,  nothing  as  to  the  so-called  -sovereign 
rights  of  the  States.  As  if  with  a  prescience  of  the  dangers 
to  follow,  the  wise  men  of  1787  resolved  to  give  no  opening 
for  abstract  inquiry  and  metaphysical  dialectic.  *  But  in  vain. 
The  human  mind  is  not  to  be  so  restrained.  The  drily  legal 
and  practical  character  of  the  Constitution  did  not  present  the 
growth  of  a  mass  of  subtle  and,  so  to  speak,  scholastic  meta¬ 
physics  regarding  the  nature  of  the  government  it  created. 
The  inextricable  knots  which  American  lawyers  and  publi¬ 
cists  went  on  tying,  down  till  1861,  were  cut  by  the  sword  of 
the  North  in  the  Civil  War,  and  need  concern  us  no  longer. 
It  is  now  admitted  that  the  Union  is  not  a  mere  compact  be¬ 
tween  commonwealths,  dissoluble  at  pleasure,  but  an  instru¬ 
ment  of  perpetual  efficacy,  emanating  from  the  whole  people, 
and  alterable  by  them  only  in  the  manner  which  its  own  terms 
prescribe.  It  is  “an  indestructible  Union  of  indestructible 
States.” 

It  follows  from  the  recognition  of  the  indestructibility  of  the 
Union  that  there  must  somewhere  exist  a  force  capable  of  pre¬ 
serving  it.  The  National  government  is  now  admitted  to  be 
such  a  force.  “  It  can  exercise  all  powers  essential  to  preserve 
and  protect  its  own  existence  and  that  of  the  States,  and  the 
constitutional  relation  of  the  States  to  itself  and  to  one 
another.” 


Ol 


CHAPTER  XXVII 

WORKING  RELATIONS  OF  THE  NATIONA 

GOVERNMENTS 

The  characteristic  feature  and  special  interest  of  the  Amer- 
n  Union  is  that  it  shows  us  two  governments  covering  the 
ae  ground,  yet  distinct  and  separate  in  their  action.  It  is 
"  a  &reat  factory  wherein  two  sets  of  machinery  are  at  work 
ir  revolving  wheels  apparently  intermixed,  their  bands 
ossing  one  another,  yet  each  set  doing  its  own  work  with- 
Jit  touching  or  hampering  the  other.  To  keep  the  National 
bvernment  and  the  State  governments  each  in  the  allotted 
sphere,  preventing  collision  and  friction  between  them  was 
fife  Primary  aim  of  those  who  formed  the  Constitution,  a  task 
tl|e  more  needful  and  the  more  delicate  because  the  States 
bald  been  until  then  almost  independent  and  therefore  jealous 
of Vheir  privileges,  and  because,  if  friction  should  arise,  the 
Nat™crml  government  could  not  remove  it  by  correcting  defects 
machinery.  For  the  National  government,  being  itself 
reature  of  the  Constitution,  was  not  permitted  to  amend 
’Onsfttution,  but  could  only  refer  it  back  for  amendment 

\25lP  6  ^ie  ^tafes  or  f°  their  legislatures.  Hence  the 
»f  1787,  feeling  the  cardinal  importance  of  anticipating 
and!  avoiding  occasions  of  collision,  sought  to  accomplish  their 
object  I  by  the  concurrent  application  of  two  devices.  Oije-was 
to  restV’hjt  the  functions  of  the  National  government  to  the 
irreducible  minimum  of  functions  absolutely  needed  for  the 
natioi^Mk^^fare,  so  that  everything  else  should  be  left  to 
the  States.  .  the  other  was  to  give  that  government,  so  far  as 
those  gnVctions  extended,  a  direct  and  immediate  relation  to 
the  citizens,  so  that  it  should  act  on  them  not  through  the 
States  butyf  its  own  authority  and  by  its  own  officers. 

The  wording  relations  of  the  National  government  to  the 


234 


THE  NATIONAL  GOVERNMENT 


PART  i 


\ 


tes  may  be  considered  undergo  heads,  viz.  ^-lations  to 
kSUtes  as  individuals^  they  being  also  citizens  of  the  Union. 

^tuhs  1^?^“  J 

Hip  National  government;  another  is  tire  co 
,er  them  by  the  Federal  Constitution  through 
‘  the  third  is  the  control  exercised  over 

.  ,  -  legislature  and  executive  in  the  tlis- 

£“ge  o'lSTgoTning  functions  which  these  latter  authon- ■ 

ties  POfess^  form  the  National  government  b jM 

choosing6  Residential  Rector,  by  choosmg  — ^  >* 
KXillS fth erHoteeofWSreTentatives.i  No  difficulty  has  ever 
arisen^ (except  during  the 

of  the  States  to  dischai„e  es  >  National  exeij.,,. 

to  exercise  as  much  influence  -  * -“^tude  ^  ^  , 
tive  and  Congress.  But  -  presidential  elector 

»  *»»  ±;r  31E'  »:■  i.~  %.« «..» >1. 

m  any  way  1  .  thirty  years  of  the  XJniiM)n 

popular  vote  But^  during  ^  tQ  their  respective  le*is- 

many  States  left  tl  ^  p0wer  of  prescribing  the  Man- 

latures.  So  a  State  y,  y  v  whatever  franchise  it 

chise  for  its  State  elections  prescnbe  wl  j  V 

pleases  for  the  election  of  persons  who  would  in 

°5 hBTtates  bHxciuded'from  the  suffrage,  or  exclude  pjrsons 

£^SSrStat.be— d  ifc 

States  uow  ahow  aliens  C  admit  women  to  vot  J at  its 

vote;  and  any  State  wmo  wotfld  fhereby 

own  State  elections  (as  ^“Xlections.  tL  only 
admit  them  also  o  vo  .  SCretion  in  this  respect!  is  that 

r  P'T 10 

™  »•  “io,i  7  r™"’ 

condition  of  servitude. 


4 


„  x  r.  . .  thp  times  places,  and  manner  of  holding 

i  Congress  may  regulate  by  stat  >  P  defoe  so  to  some 

Sections  for  representatives  (Const.  Art.  M  , 

extent. 


chap,  xxvii  WORKING  OF  THE  FEDERAL  SYSTEM 


235 


II.  The  Federal  Constitution  deprives  the  States  of  certain 
powers  they  would  othegjtffe  enjoy.  Some  of  these,  such  as 
that  of  making  treaties^- ere  obviously  impermissible,  and  such 
as  the  State  need  not  'regret.  Others,  however,  seriously  re¬ 
strain  their  daily  action.  They  are  liable  to  be  sued  in  the 
Federal  courts  by  another  State  or  by  a  foreign  Power.  They 
cannot,  'except  with  the  consent  of  Congress,  tax  exports  or 
imports,  or  in  any  case  pass  a  law  impairing  the  obligation  of  a 
contract.  They  must  surrender  fugitives  from  the  justice  of 
any  other  State.  Whether  they  have  transgressed  any  of  these 
restrictions  is  a  question  for  the  courts  of  law,  and,  if  not  in 
the  first  instance,  yet  always  in  the  last  resort  a  question  for  the 
Federal  Supreme  Court.  If  it  is  decided  that  they  have  trans¬ 
gressed,  their  act,  be  it  legislative  or  executive,  is  null  and  void.1 

The  President  as  National  executive,  and  Congress  as  National 
legislature,  have  also  received  from  the  Constitution  the  right 
of  interfering  in  certain  specified  matters  with  the  govern¬ 
ments.  of  the  States.  Congress  of  course  does  this  by  way  of 
legislation,  and  when  an  Act  of  Congress,  made  within  the 
powers  conferred  by  the  Constitution,  conflicts  with  a  State 
statute,  the  former  prevails  against  the  latter.  It  prevails  by 
making :  the  latter  null  and  void,  so  that  if  a  State  statute  has 
been  duly  passed  upon  a  matter  not  forbidden  to  a  State  by 
the  Constitution,  and  subsequently  Congress  passes  an  act  on 
the  same  matter,  being  one  whereon  Congress  has  received  the 
right  to  legislate,  the  State  statute,  which  was  previously 
valid,  now  becomes  invalid  to  the  extent  to  which  it  conflicts 
with  the  Act  of  Congress.  For  instance,  Congress  has  power 
to  establish  a  uniform  law  of  bankruptcy  over  the  whole  Union. 
It  has  formerly,  in  the  exercise  of  this  power,  passed  bank¬ 
ruptcy  laws ;  but  these  have  been  repealed,  and  at  present 
the  subject  is  left  to  the  State  la^p,  which  are  accordingly  in 

1  Mr.  Justice  Miller  observes  ( Centennial  Address  at  Philadelphia)  that  “at 
no  time  since  the  formation  of  the  Union  1  as  there  been  a  period  when  there 
were  not  to  be  found  on  the  statute  books  cdsome  of  the  States  acts  passed  in 
violation  of  the  provisions  of  the  Constitution  regarding  commerce,  acts  im¬ 
posing  taxes  and  other  burdens  upon  the  fr™  interchange  of  commodities, 
discriminating  against  the  productions  of  oth^^tates,  and  attempting  to  es¬ 
tablish  regulations  of  commerce,  which  the  ^B^titution  says  shall  only  be 
done  by  Congress.”  All  such  acts  are  of  co^C  held  invalid  by  the  courts 
when  questioned  before  them. 


236 


THE  NATIONAL  GOVERNMENT 


PART  I 


full  force  in  the  several  State^L  Were  Congress  again  to 
legislate  on  the  subject,  these  laws  would  lose  their 

force ;  and  if  the  law  passed  by  Coii^sb  were  again  repealed, 
they  would  again  spring  into  life.  Tin*  field  of  this  so-called 
concurrent  legislation  is  large,  for  Congress  has  not  yet  exer¬ 
cised  all  the  powers  vested  in  it  of  superseding  State  action. 

It  was  remarked  in  the  last  chapter  that  in  determining  the 
powers  of  Congress  on  the  one  hand  and  of  a  State  government 
on  the  other,  opposite  methods  have  to  be  followed.  The  px: 
sumption  is  always  in  favour  of  the  State;  and  in  order  to 
show  that  it  cannot  legislate  on  a  subject,  there  must  be 
pointed  out  within  the  four  corners  of  the  Constitution  some 
express  prohibition  of  the  right  which  it  prima  fade  possesses, 
or  some  implied  prohibition  arising  from  the  fact  that  legisla¬ 
tion  by  it  would  conflict  with  legitimate  Federal  authority. 
''On  the  other  hand,  the  presumption  is  always  against  Con¬ 
gress,  and  to  show  that  it  can  legislate,  some  positive  grant  of 
power  to  Congress  in  the  Constitution  must  be  pointed-  out. 
When  the  grant  is  shown,  then  the  Act  of  Congress  has,  so 
long  as  it  remains  on  the  statute  book,  all  the  force  of  the 
Constitution  itself.  In  some  instances!?  the  grant  of  power  to 
Congress  to  legislate  is  auxiliary  to  a  prohibition  imposed  on 
the  States.  This  is  notably  the  case  as  regards  me  amend¬ 
ments  to  the  Constitution,  passed  for  the  protection  of  the 
lately  liberated  Negroes.  I  Th$y  interdict  the  States  from  either 
recognizing  slavery  or  discriMifiating  in  any  way  against  any 
class  of  citizens ;  they  go  even  beyond  citizens  in  their  care, 
and  declare  that  “  no  State  shall  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws.”  Now,  by  each 
of  these  amendments,  Congress  is  also  empowered,  which 
practically  means  enjoined!  to “  enforce  by  appropriate  legis¬ 
lation”  the  prohibitions  IMd  upon  the  States.  Congress  has 
done  so,  but  some  of  its  efforts  have  been  held  to  go  beyond 
the  directions  of  the  amendments,  and  to  be  therefore  void. 
The  grant  of  power  has  not;  covered  them. 

y 

1  See  the  interesting  case  of  Scurges  v.  Crowninshield,  4  Wheat.  196. 

2  The  grant  need  not,  horoAr,  he  express,  for  it  has  frequently  been  held 
that  a  power  incidental  or  i^Bumental  to  a  power  expressly  given  may  be 
conferred  upon  Congress  bj^Bessary  implication.  See  M’Culloch  v.  Mary¬ 
land,  4  Wheat,  p.  316,  and  Chapter  XXXI. 


— Ap-  xxvii  WORKING  OF  THE  FEDERAL  SYSTEM 


237 


Where  the  President  interferes  with  a  State,  lie  does  so 
either  under  his  duty  to  give  effect  to  the  legislation  of  Con- 

'  KTr  0r,."“der  *lie  discretionary  executive  functions  which 
the  Constitution  has  entrusted  to  him.  So  if  any  State  were 
o  epait  from  a  republican  form  of  government,  it  would  be 
pmduty  to  bring  the  fact  to  the  notice  of  Congress  in  order 
that  the  guarantee  of  that  form  contained  in  the  Constitution 
might  be  made  effective.  If  an  insurrection  broke  out  against 
the  authority  of  the  Union,  he  would  (as  in  1861)  send  Federal 
troops  to  suppress  it.  If  there  should  be  rival  State  govern- 
icnts,  each  claiming  to  be  legitimate,  the  President  mi  "lit 

ojjuze  and  support  the  one  which  he  deemed  regular  and 
constitutional. 

Are  these,  it  may  be  asked,  the  only  cases  in  which  Federal 
thority  can  interfere  within  the  limits  of  a  State  to  main- 
*™fcr  •  A-re  law  and  order,  i.e.  the  punishment  of  crimes 

„  u  ,‘e  element  of  civil  rights,  left  entirely  to  State 
authorities  i  The  answer  is  :  — 

...  Offences  against  Federal  statutes  are  justiciable  in  Federal 

punishable  under  Federal  authority.  There  is  no 
d  ederajl  common  law  of  crimes. 

Resistance  offered  to  the  enforcement  of  a  Federal  statute 
may  be.suppressed  by  Federal  authority. 

Attacks  on  the  property  of  the  Federal  government  may  be 

FedfMPr  dlsturkan°e  thence  arising,  may  be  quelled  by 

so  cX  1  S  7t  US  “  1794  WashhlSton  suppressed  the 
of  Penfiilvi,  7  Insurrection  in  Pennsylvania  by  the  militia 
of  Penny] vama,  New  Jersey,  Virginia,  and  Maryland;1  and 

a  ■de^MMand.ln  1894  OTdered  out  United  States  troops 
pioteot  the  mails  m  Illinois  and  some  other  Western  States. 

J  ■^H^pr0n0Unced  111  civil  causes  by  Federal  courts 
are  execu&d  by  t^e  officers  of  these  courts. 

All  other  offenCes  and  disorders  whatsoever  are  left  to  be 

dealt,  with  by  the  ..duly  constituted  authorities  of  the  State 

sraq ahr in  -  - — *-* 

This  case  is  that  of  the  breaking  out  in  a  State  of  serious 
isturbanees.  Ihe  .  resident  is  bound  on  the  application  of 

an  — 6 


1 


238 


THE  NATIONAL  GOVERNMENT 


part 


flip  State  legislature  or  executive  to  quell  such  disturbai 
by  f  armed  forces  of  the  Union,  or  by  directing  the  mijtia 
fi  av  Stnte  to  enter  President  Grant  was  obliged  ta  I 
an-  Harv  force  during  the  troubles  which  disturbed  severa 
rfirSouthritSter  the  Civil  War;  as  was  Preside^  « 
Haves  during  the  tumults  m  Pennsylvania  caused  by 
JL^t  railway  strikes  of  1877.  There  have  however,  been 
&  i  Hon*  rebellion  in  Rhode  Island  in  18  > 

in  whicha  slate  has^elf  suppressed 

so  i?ittcLateandOVtoirek  Federal  aid  only  in  extreme  eases, 

— ng  the  relations  of  Ure  Hatk 

government  to  the  States  as  political  communities.  Let 
flow  se”  what  are  its  relations  to  the  individual  citizen* 
o  si  JP?  They  are  citizens  of  the  Union  as  well M  of 

i z  ss  -  «  » r 10  Tw “Jr" 

has  a  right  to  command  tlieir  obedience.  To  which  tl^en,  m  _ 

CaThef  right*  of  thf'stateto  obedience  is  wider  in  the  area  of 
°v-  -i  if  eovers.  Priftici  facie,  every  State  lawt  every 

order  of  Icompetent  State 

■Hip  Nhfional  government  has  but  a  limixe  p  *  .  ■. 

?r”uT  sfet 

Ser  £  IS  £  Statefand  muft  be  obeyed  ev.n  at  the 

"'iht  sSXlofthfprivate  citizen  may  be  thus  ^pressed : 
“Ascertain  whether  the  Federal 

.  r  tafall  f°  disregard  it,  Id  obey  the 

to  it  at  all  haza  hard  on  tbe  private  citi- 

aeI.0HyowrshSan  he  seUle  forlimself  such 
law  as  whether  Congress  had  power  to  pass 

seeing  that  the  question  arises, 

before  the  courts  ?  have  learnt  to  keep 

for  Congress  and  the  estions  that  arise 

- »«* »>•»*-  “ 


man. 


chap,  xxvii  WORKING  OF  THE  FEDERAL  SYSTEM 


231 


The  same  remarks  apply  to  conflicts  between  the  commands 
_  P  executive  officers  of  the  National  government  on  the  one 
■Bi^nd  those  of  State  officials  on  the  other.  If  the  National 
otfrcef  is  acting  within  his  constitutional  powers,  he  is  entitled 
to  bejobeyed  in  preference  to  a  State  official,  and  conversely,  if 
the  State  official  is  within  his  powers,  and  the  National  officer 
acting  m  excess  of  those  which  the  Federal  Constitution  con¬ 
fers,  the  State  official  is  to  be  obeyed. 

The  limits  of  judicial  power  are  more  difficult  of  definition. 
Every  citizen  can  sue  and  be  sued  or  indicted  both  in  the  courts 
ot  his  State  and  in  the  Federal  courts,  but  in  some  classes  of 
cases  the  former,  in  others  the  latter,  is  the  proper  tribunal 
while  in  many  it  is  left  to  the  choice  of  the  parties  before 
I  JV  I 1  ^  r  1 3 u n al  tliey  Wl11  proceed.  Sometimes  a  plaintiff  who 

&as.<  brought  his  action  in  a  State  court  finds  when  the  case  has 
g<M/omcertam  length  that  a  point  of  Federal  law  turns  up 

W^l^^tltleS  eitllGr  himself  or  the  defendant  to  transfer  it  to 
a  FeteOT  court,  or  to  appeal  to  such  a  court  should  the  decision 
have  gofidAagainst  the  applicability  of  the  Federal  law.  Suits 
are  thuPbjj^gtitly  transferred  from  State  courts  to  Federak 
courts,  bilft^n&.one  can  ever  reverse  the  process  and  carry  a 
suit  from  a^Mdral  court  to  a  State  court. 

Within  it%ftper  sphere  of  pure  State  law,  -  and  of  course 
the  great  bttlfetfltifta  cases  turn  on  pure  State  law,  — there  is 
no  appeal  from  4 -State  court  to  a  Federal  court;  and  though 
the  point  of  lawife  which  the  case  turns  may  be  one  which 
las  arisen  and  been  decided  in  the  Supreme  Court  of  the 
Union,  a  State  judge,  in  a  State  case,  is  not  bound  to  regard 
that  decision.  It  has  only  a  moral  weight,  such  as  might  be 
given  to  .  the  decision  of  an  English  court,  and  where  the 
question  is  one  of  State  law,  whether  common  law  or  statute 
law,  m  which  State  courts  have  decided  one  way  and  a  Federal 
court  the  other  way,  the  State  judge  ought  to  follow  his  own 
courts.  So  far  does  this  IS,  that  a  Federal  court  in  adminis¬ 
tering  State  law,  ought  te  reverse  its  own  previous  decision 

rather  than  depart  from  the  view  which  the  highest  State  court 
has  taken.  Nv  . 

When  a  plaintiff  has  che  choice  of  proceeding  in  a  State 
court  or  in  a  Federal  court,  he  is  sometimes,  especially  if  he 
has  a  strong  case,  inclined  to  select  the  latter,  because  the 


240 


THE  NATIONAL  GOVERNMENT 


PART  i 


Federal  judges  are  more  independent  than  those  of  moSgef  the 
states  and  less  likely  to  be  influenced  by  any  bias,  j  oo,  t  , 
if  he  thinks  that  local  prejudice  may  tell  against  am,  le  "  ' 

nrefer  a  Federal  court,  because  the  jurors  are  summoned 
a  wider  area,  and  because  the  judges  are  accustomed  tc >  exert  a 
larger  authority  in  guiding  and  1 1 

-S  courts 

are  comparatively  few ;  m  many  States  tlieie 1  Jf  .  ^  °” 

The  Federal  authority,  be  it  executive  or  judicial,  acts  up 
the  citizens  of  a  State  directly  by  means  of  its tewn 
are  quite  distinct  from  and  independent  of  the  St.f'  ’ 

Federal  indirect  taxes,  for  instance,  are  levied  all  alonB  the 

and  excisemen,  acting  under  the  orders 

“arriefol by  United  State's  mafstals,"  likewise  dispei^vcr 

which  is  being  enforced  be  popular  <*  < ***"?•  J” 
o  xTntional  government  ramifies-  ovea  /the  viioie  umo 

k'  “rts «„  pwfers  s 

direct  connection  with  the  central  executive.  The  same  is,  o 
course,  true  of  the  army:  wWe  Tnd" 

“S  fe»  view  in  the  ordinary 

WOma!  S:  authority  of  the  National  government 
is  Iposed  ffl  for  instance,  an  execution  levied  m  pursuance 
of  a^iudgment  of  a  Federal  court  is  resisted,  or  Fedeial  excise 
0±  41 3  i seizure  of  an  illicit  distillery  ? 

m  WornSe  UnS  States  marshal  or  other  Federal  officer 
to  be  Unable  to  overcome  the  physical  force  opposed  to  him 
i  oxr  (jiimmon  all  good  citizens  to  assist  him,  just  as  tl  e 
Sheriff  may  summon  the  posse  eomitatus.  If  this  appeal  proves 
insufficient,  he  must  call  upon  the  Present,  who  may  either 


241 


CHAP.  XXVII 


WORKING  OF  THE  FEDERAL  SYSTEM 


^tr:fc°PS  t0,  hiS  aid  °r  re<luire  ‘he  militia  of 
t  ie  state  in  which  resistance  is  offered  to  overcome  that  resist 

sit  inns  tT'T  ^  ™  »<*  entitled  To  mak  re  J  ! 

sitions  for  State  force.  The  common  law  principle  that  all 

citizens  are  bound  to  assist  the  ministers  of  theP  law  holds 

good  m  America  as  in  England,  but  it  is  as  true  in  the  one 

eoiinti}  as  m  the  other,  that  what  is  everybody’s  business  is 

nobody  s  business.  Practically,  the  Federal  authorities  are  not 
resisted  in  the  more  orderly  States  are  not 

an^orderTS  f"0*^68  of  a  State  resist  the  laws 

a  01  dei s  of  the  National  government,  a  more  difficult  oues- 

^T1  TZh  T18  haS  several  times  happened, 
in  1808  the  legislatures  of  some  of  the  New  England  States 

S Ch"1'""'  "«  "b"*” « i 

TbeT  I*  Jd  d  !lp0n  sIlIPPlng  by  an  Act  of  that  year 
v  Fhe  State  judges  emboldened  by  these  resolutions,  took  an 

att,,ude  consistently  hostile  to  the  embargo,  holding  it  to  be 

unconstitutional;  popular  resistance  broke  out  m  some  of  the 

coast  towns;  and  the  Federal  courts  in  New  England  seldom 

succeeded  in  finding  juries  which  would  convict  even  for  the 

the  war  ofai8P>°t  aeIOn  °f  *  At  the  outbreak  of 

tlie  war  of  1812  the  governors  of  Massachusetts  and  Connect! 

cut  refused  to  allow  the  State  militia  to  leave  their  State  hi 

pursuance  of  a  requisition  made  by  the  President  under  the 

authority  of  an  Act  of  Congress,  alleging  the  requisition  to  be 

unconstitutional;  and  m  October  1814  the  leeklatnrp*  nf  fi 

two  States  and  of  Rhode  Island,  States  SgSjSr  w 

land  feeling  against  the  war  had  risen  high  sent  dele  .„f 

a  convention  at  Hartford,  which,  after 

session  issued  a  report  declaring  that  “it  is  as  much  the  duty 

the  UifitedTatTT168  t0  Wat°,h  °V6r  *he  riSht«rved  as  of 
the  United  States  to  exercise  the  powers  delegated.”  Massa- 

msetts  and  Connecticut  adopted  the  report;  but  before  their 

commissioners  reached  Washington,  peace  with  Great  Britain 

Act  of  Congress  regarding  the  Cherokee  Indians  and  to  re 
spect  the  treaties  which  the  United  States  had  made  with  that 

^forced  aT  ^  T*  l^ture  passed  and 

Amfoiced  Acts  m  contempt  of  Federal  authority,  and  disre 

garded  the  orders  of  the  Supreme  Court,  President  Jackson 

ft  } 


242 


THE  NATIONAL  GOVERNMENT 


PART  i 


who  had  an  old  frontiersman’s  hatred  of  the  Indians,  declining 

t°Kmalilym  1832,  South  Carolina,  first  in  a  State  convention 
and  then  by  her  legislature,  declared  the  tariff  imposed  by 
Congress  to^^  be  null  and  void  as  regarded  herself,  and  pro¬ 
ceeded  to  prepare  for  secession  and  war  In  none  of  tiese 
I  ^  f  ht  out  either  m  the  courts  or  m  the 

cases  was  the  disp  &  right  of  a  State  to  resist 

held ;  and  the  ques  ion  means  whereby  she  could  be 

Federal  author**  and  as  to  ‘^“  settlement *  Settled  they 

finally  wire  by  the  Civil  War  of  1861-65  since  which  time 
the  following  doctrines  may  be  deemed  estaWished: 

No  State  has  a  right  to  declare  an  act  of  the  federal  gov 

ment  invalid.  „  .-i  TTwirm 

No  State  has  a  right  to  secede  from  the  Union  ^ 

The  only  authority  competent  to  decide  hna  y  - 

stitutionahty  of  an  act  of  Congress  or  of  the  National  execute 

iS  M  ofaSteTeSslature  or  a  State  executive'^conflicting 
with1  thlf Constitution,  or  with  an  act  of  the  /overm 

ment  done  under  the  Constitution,  is  really  an  act  not  of  t 
State  government,  which  cannot  legally  act  against  e  ons  i- 

tution,  but  of  persons  falsely  assuming  to  f°^ey 

ment  and  is  therefore  ipso  jure  void.  Those  who  disoD  y 

Federal  authority  on  the  ground  of  the  comm ^ 

authority  are  therefore  insurgents  against  the 

be  coerced  by  its  power.  The  coercion  of  such  insurgents  is 
directed  not  against  the  State  but  against  them  as  individual 
though  combined  wrong-doers.  A  State  cannot  secede  an 
cannot  rebel.  Similarly,  it  cannot  be  coerced. 


CHAPTER  XXVIII 


CRITICISM  OF  THE  FEDERAL  SYSTEM 


It  has  long  been  agreed  that  the  only  possible  form  of  gov- 
eminent  for  America  is  a  Federal  one.  All  men  have  per¬ 
ceived  that  a  centralized  system  would  be  inexpedient,  if  not 
unworkable,  over  so  large  an  area,  and  have  still  more  strongly 
telt  that  to  cut  up  the  continent  into  absolutely  independent 
States  would  not  only  involve  risks  of  war  but  injure  com¬ 
merce,  and  retard  in  a  thousand  ways  the  material  develop¬ 
ment  of  every  part  of  the  country.  But  regarding  the  nature 
of  the  Federal  tie  that  ought  to  exist  there  have  been  keen 
and  frequent  controversies,  dormant  at  present,  but  which 
might  break  out  afresh  should  there  arise  a  new  question  of 
social  or  economic  change  capable  of  bringing  the  powers  of 
Congress  into  collision  with  the  wishes- of  any  State  or  group 
of  States.  The  general  suitability  to  the  country  of  a  Federal 
system  is  therefore  accepted,  and  need  not  be  discussed.  I  pass 
to  consider  the  strong  and  weak  points, of  that  which  exists. 

The  faults  generally  charged  on  federations  as  compared 
with  unified  governments  are  the  following : _ 

I.  Weakness  in  the  conduct  q£  foreign  affairs. 

II.  Weakness  in  home  government,  that  is  to  say,  deficient 
authority  over  the  component  Staffs  and  the  individual  citizens. 

III.  Liability  to  dissolution  tjyThe  secession  or  rebellion  of 
States. 

IV.  Liability  to  division  into  groups  and  factions  by  the 
foraiataop.  of  separate  combinations  of  the  component  States. 

V.  Want  of  uniformity  an  jng  the  States  in  legislation  and 

ci<  1  ministration. 

VI.  Trouble,  expense,  an  i  delay  due  to  the  complexity  of  a 
double  system  of  legislation  and  administration. 

The  first  four  of  these  are  all  due  to  the  same  cause,  viz.  the 
existence. within  one  government,  which  ought  to  be  able  to 

243 


244 


THE  NATIONAL  GOVERNMENT 


PART  I 


speak  and  act  in  the  name  and  with  the  united  strength  of  the 
nation,  of  distinct  centres  of  force,  organized  political  bodies 
into  which  part  of  the  nation’s  strength  has  flowed,  and  whose 
resistance  to  the  will  of  the  majority  of  the  whole  nation  is 
likely  to  be  more  effective  than  could  be  the  resistance  of  indi¬ 
viduals,  because  such  bodies  have  each  of  them  a  government, 
a  revenue,  a  militia,  a  local  patriotism  to  unite  them,  whereas 
individual  recalcitrants,  however  numerous,  would  be  unorgan¬ 
ized,  and  less  likely  to  find  a  legal  standing  ground  for  opposi¬ 
tion.  The  gravity  of  the  first  two  of  the  four  alleged  faults 
has  been  exaggerated  by  most  writers,  who  have  assumed,  on 
insufficient  grounds,  that  Federal  governments  are  necessarily 
weak.  Let  us,  however,  see  how  far  America  has  experienced 
such  troubles  from  these  features  of  a  Federal  system. 

I.  In  its  early  years,  the  Union  was  not  successful  in  the 
management  of  its  foreign  relations.  Few  popular  govern¬ 
ments  are,  because  a  successful  foreign  policy  needs  in  a 
world  such  as  ours  conditions  which  popular  governments 
seldom  enjoy.  In  the  days  of  Adams,  Jefferson,  and  Madi¬ 
son,  the  Union  put  up  with  a  great  deal  of  ill-treatment 
from  France  as  well  as  from  England.  It  drifted  rather  than 
steered  into  the  war  of  1812.  The  conduct  of  that  war  was 
hampered  by  the  deposition  of  the  New  England  States.  The 
Mexican  war  of  1840  was  due  to  the  slaveholders ;  but  as  the 
combination  among  the  Southern  leaders  which  entrapped  the 
nation  into  that  conflict  might  have  been  equally  successful  in 
a  unified  country,  the  bl  tine  need  not  be  laid  at  the  door  of 
Federalism.  But  when  a  question  of  external  policy  arises 
which  interests  only  one  part  of  the  Union,  the  existence  of 
States  feeling  themselves  specially  affected  is  apt  to  have  a 
strong  and  probably  an  unfortunate  influence.  Only  in  this 
way  can  the  American  government  be  deemed  likely  to  suffer 
in  its  foreign  relations  from  its  Federal  character. 

II.  For  the  purposes  of  domestic  government  the  Federal 
authority  is  now,  in  ordinary  times,  sufficiently  strong.  How¬ 
ever,  as  was  remarked  in  last  chapter,  there  have  been  occa-  j 
sions  when  the  resistance  of  even  a  single  State  disclosed  its 
weakness.  Had  a  man  less  vigorous  than  Jackson  occupied 
the  presidential  chair  in  1832,  South  Carolina  would  probably 
have  prevailed  against  the  Union.  In  the  Kansas  troubles  of 


chap,  mm  CRITICISM  OF  THE  FEDERAL  SYSTEM 


245 


1855-53  the  National  executive  played  a  sorry  part;  and  even 
in  the  resolute  hands  of  President  Grant  it  was  hampered  in 
the  re-establishment  of  order  in  the  reconquered  Southern 
States  by  the  rights  which  the  Federal  Constitution  secured 
to  those  States.  The  only  general  conclusion  on  this  point 
which  can  be  drawn  from  history  is  that  while  the  central 
government  is  likely  to  find  less  and  less  difficulty  in  en¬ 
forcing  its  will  against  a  State  or  disobedient  subjects,  because 
the  prestige  of  its  success  in  the  Civil  War  has  strengthened 
it  and  the  facilities  of  communication  make  the  raising  and 
moving  of  troops  more  easy,  nevertheless  recalcitrant  States, 
or  groups  of  States,  still  enjoy  certain  advantages  for  resist¬ 
ance,  advantages  due  partly  to  their  legal  position,  partly  to 
their  local  sentiment,  which  rebels  might  not  have  in  unified 
countries  like  England,  France,  or  Italy. 

III.  Everybody  knows  that  it  was  the  Federal  system,  and 
the  doctrine  of  State  sovereignty  grounded  thereon,  and  not 
expressly  excluded,  though  certainly  not  recognized,  by  the 
Constitution,  which  led  to  the  secession  of  1861,  and  gave 
European  powers  a  plausible  ground  for  recognizing  the  insur¬ 
gent  minority  as  belligerents.  Nothing  seems  now  less  prob¬ 
able  than  another  secession,  not  merely  because  the  supposed 
legal  basis  for  it  has  been  abandoned,  and  because  tha?'  advan¬ 
tages  of  continued  union  are  more  obvious  than  ever  before,  but 
because  the  precedent  of  the  victory  won  by  the  North  will 
discourage  like  attempts  in  the  future.  This  is  so  strongly 
felt  that  it  has  not  even  been  thought  worth  while  to  add  to 
the  Constitution  an  amendment  negativing  the  right  to  secede. 

IV.  The  combination  of  States  into  groups  was  a  familiar 
feature  of  politics  before  the  war.  South  Carolina  and  the 
Gulf  States  constituted  one  such,  and  the  most  energetic, 
group;  the  New  England  States  frequently  acted  as  another, 
especially  during  the  war  of  1812.  At  present,  though  there 
are  several  sets  of  States  whose  common  interests  lead  their 
representatives  in  Congress  to  act  together,  it  is  no  longer  the 
fashion  for  States  to  combine  in  an  official  way  through  their 
State  organizations,  and 'their  doing  so  would  excite  reprehen¬ 
sion.  It  is  easier,  safer,  and  more  effective  to  act  through  the 
great  National  parties.  Any  considerable  State  interest  (such 
as  that  of  the  silver-miners  or  cattle-men,  or  Protectionist 


246 


THE  NATIONAL  GOVERNMENT 


PART  I 


manufacturers)  can  generally  compel  a  party  to  conciliate  it 
by  threatening  to  forsake  the  party  if  neglected.  Political 
action  runs  less  in  State  channels  than  it  did  formerly,  and 
the  only  really  threatening  form  which  the  combined  action  of 
States  could  take,  that  of  using  for  a  common  disloyal  purpose 
State  revenues  and  the  machinery  of  State  governments,  has 
become,  since  the  failure  of  secession,  most  improbable. 

V.  The  want  of  uniformity  in  private  law  and  methods  of 
administration  is  an  evil  which  different  minds  will  judge  by 
different  standards.  Some  may  think  it  a  positive  benefit  to 
secure  a  variety  which  is  interesting  in  itself  and  makes  pos¬ 
sible  the  trying  of  experiments  from  which  the  whole  country 
may  profit.  In  the  United  States  the  possible  diversity  of  laws 
is  immense.  Subject  to  a  few  prohibitions  contained  in  the 
Constitution,  each  State  can  play  whatever  tricks  it  pleases 
with  the  law  of  family  relations,  of  inheritance,  of  contracts, 
of  torts,  of  crimes.  But  the  actual  diversity  is  not  great,  for 
all  the  States,  save  Louisiana,  have  taken  the  English  common 
and  statute  law  of  1776  as  their  point  of  departure,  and  have 
adhered  to  its  main  principles. 

nr  I  have  left  to  the  last  the  gravest  reproach  which  Europeans 
"Lave  been  wont  to  bring  against  Federalism  in  America.  They 
attributed  to  it  the  origin,  or  at  least  the  virulence,  of  the  great 
struggle  over  slavery  which  tried  the  Constitution  so  severely. 
That  struggle  created  parties  which,  though  they  had  adherents 
everywhere,  no  doubt  tended  more  and  more  to  become  identi¬ 
fied  with  States,  controlling  the  State  organizations  and  bending 
the  State  governments  to  their  service.  It  gave  tremendous 
importance  to  legal  questions  arising  out  of  the  differences  be¬ 
tween  the  law  of  the  Slave  States  and  the  Free  States,  questions 
which  the  Constitution  had  either  evaded  or  not  foreseen.  It 
shook  the  credit  of  the  Supreme  Court  by  making  the  judicial 
decision  of  those  questions  appear  due  to  partiality  to  the 
Slave  States.  It  disposed  the  extreme  men  on  both  sides  to 
hate  the  Federal  Union  which  bound  them  in  the  same  body 
with  their  antagonists.  It  laid  }  old  of  the  doctrine  of  State 
rights  and  State  sovereignty  as  entitling  a  commonwealth 
which  deemed  itself  aggrieved  to  shake  off  allegiance  to  the 
National  government.  Thus  at  last  it  brought  about  secession 
and  the  great  Civil  War.  Even  when  the  war  was  over,  the 


chap,  xxviii  CRITICISM  OF  THE  FEDERAL  SYSTEM 


247 


— 

dregs  of  the  poison  continued  to  haunt  land  vex  the  system, 
and  bred  fresh  disorders  in  it.  The  constitutional  duty  of  re¬ 
establishing  the  State  governments  of  the  conquered  States  on 
the  one  hand,  and  on  the  other  hand  the  practical  danger  of 
doing  so  while  their  people  remained  disaffected,  produced 
the  military  governments,  the  “  carpet  bag  ’i  governments,  the 
Ku  Klux  Klan  outrages,  the  gift  of  suffrage  to  a  Negro  popu¬ 
lation  unfit  for  such  a  privilege,  yet  apparently  capable  of 
being  protected  in  no  other  way.  All  thesd  mischiefs,  it  has 
often  been  argued,  are  the  results  of  the  Federal  structure  of 
the  government,  which  carried  in  its  bosom  the  seeds  of  its 
own  destruction,  seeds  sure  to  ripen  so  soon  as  there  arose  a 
question  that  stirred  men  deeply. 

It  may  be  answered  not  merely  that  the  National  govern¬ 
ment  has  survived  this  struggle  and  emerged  from  it  stronger 
than  before,  but  also  that  Federalism  did  not  produce  the 
struggle,  but  only  gave  to  it  the  particular  form  of  a  series  of 
legal  controversies  over  the  Federal  pact  followed  by  a  war’bf 
States  against  the  Union.  Where  such  vast  economic  inter¬ 
ests  were  involved,  and  such  hot  passions  roused,  there  must 
anyhow  have  been  a  conflict,  and  it  may  well  be  that  a  conflict 
raging  within  the  vitals  of  a  centralized  government  would 
have  proved  no  less  terrible  and  would  have  left  as  many 
noxious  sequelae  behind. 

In  blaming  either  the  conduct  of  a  person  or  the  plan  and 
scheme  of  a  government  for  evils  which  have  actually  fol¬ 
lowed,  men  are  apt  to  overlook  those  other  evils,  perhaps  as 
great,  which  might  have  flowed  from  different  conduct  or 
some  other  plan.  All  that  can  fairly  be  concluded  from  the 
history  of  the  American  Union  is  that  Federalism  is  obliged 
by  the  law  of  its  nature  to  leave  in  the  hands  of  States  powers 
whose  exercise  may  give  to  political  controversy  a  peculiarly 
dangerous  form,  may  impede  the  assertion  of  National  authority, 
may  even,  when  long-continued  exasperation  has  suspended  or 
destroyed  the  feeling  of  a  common  patriotism,  threaten  National 
unity  itself.  Against  this  danger  is  to  be  set  the  fact  that  the 
looser  structure  of  a  Federal  government  and  the  scope  it  gives 
for  diversities  of  legislation  in  different  parts  of  a  country  may 
avert  sources  of  discord,  or  prevent  local  discord  from  growing 
into  a  contest  of  national  magnitude. 


\ 

i 

\ 

i 


I 


* 


:ha 


CHAPTER  XXIX 


Tr 


MERITS  OF  THE  FEDERAL  SYSTEM 


I  do  not  propose  to  discuss  in  this  chapter  the  advantages 
of  Federalism  in  general,  for  to  do  this  we  should  have  to 
wander  off  to  other  times  and  countries,  to  talk  of  Achaia  and 
the  Hanseatic  League  and  the  Swiss  Confederation.  I  shall 
comment  on  those  merits  only  which  the  experience  of  the 
American  Union  illustrates. 

There  are  two  distinct  lines  of  argument  by  which  their 
Federal  system  was  recommended  to  the  framers  of  the  Con¬ 
stitution,  and  upon  which  it  is  still  held  forth  for  imitation 
to  other  countries.  These  lines  have  been  so  generally  con¬ 
founded  that  it  is  well  to  present  them  in  a  precise  form. 

The  first  set  of  arguments  point  to  Federalism  proper,  and 
are  the  following  :  — 

1.  That  Federalism  furnishes  the  means  of  uniting  com¬ 
monwealths  into  one  nation  under  one  National  government 
without  extinguishing  their  separate  administrations,  legislar 
tures,  and  local  patriotisms.  As  the  Americans  of  1787  would 
probably  have  preferred  complete  State  independence  to  the 
fusion  of  their  States  into  a  unified  government,  Federalism 
was  the  only  resource.  Federalism  is  an  equally  legitimate 
resource  whether  it  is  adopted  for  the  sake  of  tightening  or  for 
the  sake  of  loosening  a  pre-existing  bond. 

2.  That  Federalism  supplies  the  best  means  of  developing  a 
new  and  vast  country.  It  permits  an  expansion  whose  extent, 
and  whose  rate  and  manner  of  progress^cannot  be  foreseen  to 
proceed  with  more  variety  of  methods^more  adaptation  of  laws 
and  administration  to  the  circumstances  of  each  part  of  the  ter¬ 
ritory,  and  altogether  in  a  more  truly  natural  and  spontaneous 
way,  than  can  be  expected  under  a  centralized  government, 
which  is  disposed  to  apply  its  settled  system  through  all  its 

248 


249 


chap,  xxix  MERITS  OF  THE  FEDERAL  SYSTEM 


dominions.  Thus  the,  specfQ  needs  of  a  new  region  are  met  by 
the  inhabitants  in  tfye  way 'they  find  best:  its  special  evils  are 
cured  by  special  remedies,  perhaps  more  drastic  than  an  old 
country  demands,  perj^ps  more  lax  than  an  old  country  would 
tolerate;  while  at  Fie  same  time  the  spirit  of  self-reliance 
among  those  who  r)uild  up  these  new  communities  is  stimu¬ 
lated  and  respected. 

3.  That  Federalism  prevents  the  rise  of  a  despotic  central 
government,  absorbing  other  powers,  and  menacing  the  private 
liberties  of  the  citizen.  This  may  now  seem  to  have  been  an 
idle  fear,  so  far  as  America  was  concerned.  It  was,  however, 
a  very  real  fear  among  the  great-grandfathers  of  the  present 
Americans,  and  nearly  led  to  the  rejection  even  of  so  undes- 
potic  an  instrument  as  the  Federal  Constitution  of  1789.  Con¬ 
gress  (or  the  President,  as  the  case  may  be)  is  still  sometimes 
described  as  a  tyrant  by  the  party  which  does  not  control  it, 
simply  because  it  is  a  central  government :  and  the  States  are 
represented  as  bulwarks  against  its  encroachments. 

The  second  set  of  arguments  relate  to  and  recommend  not 
so  much  Federalism  as  local  self-government.  I  state  them 
briefly  because  they  are  familiar. 

4.  Self-government  stimulates  the  interest  of  people  in  the 
affairs  of  their  neighbourhood,  sustains  local  political  life,  edu¬ 
cates  the  citizen  in  his  daily  round  of  civic  duty,  teaches  him 
that  perpetual  vigilance  and  the  sacrifice  of  his  own  time  and 
labour  are  the  price  that  must  be  paid  for  individual  liberty 
and  collective  prosperity. 

5.  Self-government  secures  the  good  administration  of  local 
affairs  by  giving  the  inhabitants  of  each  locality  due  means  of 
overseeing  the  conduct  of  their  business. 

That  these  two  sets  of  grounds  are  distinct  appears  from  the 
fact  that  the  sort  of  local  interest  which  local  self-government 
evokes  is  quite  a  different  thing  from  the  interest  men  feel  in 
the  affairs  of  a  large  body  like  an  American  State.  So,  too,  the 
control  over  its  own  affairs  of  a  township,  or  even  a  small 
county,  where  everybody  can  know  what  is  going  on,  is  quite 
different  from  the  control  exercisable  over  the  affairs  of  a  com¬ 
monwealth  with  a  million  of  people.  Local  self-government 
may  exist  in  a  unified  country  like  England,  and  may  be  want¬ 
ing  in  a  Federal  country  like  Germany.  And  in  America  itself, 


250 


THE  NATIONAL  GOVERNMENT 


PART  I 


while  some  States,  like  those  of  New  England,  possessed  an 
admirably  complete  system  of  loca\  government,  others,  such 
as  Virginia,  the  old  champion  of  SUte  sovereignty,  were  im¬ 
perfectly  provided  with  it.  Neverthei  "S,  through  both  sets  of 
arguments  there  runs  the  general  principle,  applicable  in  every 
part  and  branch  of  government,  that,  wh^re  other  things  are 
equal,  the  more  power  is  given  to  the  units  which  compose  the 
nation,  be  they  large  or  small,  and  the  less  to  the  nation  as  a 
whole  and  to  its  central  authority,  so  much  the  fuller  will  be 
the  liberties  and  so  much  greater  the  energy' of  the  individuals 
who  compose  the  people.  This  principle,  though  it  had  not 
been  then  formulated  in  the  way  men  formulate  it  now,  was 
heartily  embraced  by  the  Americans. 

Three  further  benefits  to  be  expected  from  a  Eederal  system 
may  be  mentioned,  benefits  which  seem  to  have  been  unnoticed 
or  little  regarded  by  those  who  established  it  in  America. 

6.  Federalism  enables  a  people  to  try  experiments  in  legis¬ 
lation  and  administration  which  could  not  be  safely  tried  in 
a  large  centralized  country.  A  comparatively  small  common¬ 
wealth  like  an  American  State  easily  makes  and  unmakes 
its  laws;  mistakes  are  not  serious,  for  they  are  soon  cor¬ 
rected;  other  States  profit  by  the  experience  of  a  law  or  a 
method  which  has  worked  well  or  ill  in  the  State  that  has 
tried  it. 

7.  Federalism,  if  it  diminishes  the  collective  force  of  a  nation, 
diminishes  also  the  risks  to  which  its  size  and  the  diversities  of 
its  parts  expose  it.  A  nation  so  divided  is  like  a  ship  built  with 
water-tight  compartments.  When  a  leak  is  sprung  in  one  com¬ 
partment,  the  cargo  stowed  there  may  be  damaged,  but  the  other 
compartments  remain  dry  and  keep  the  ship  afloat.  So  if  social 
discord  or  an  economic  crisis  has  produced  disorders  or  foolish 
legislation  in  one  member  of  the  Federal  body,  the  mischief 
may  stop  at  the  State  frontier  instead  of  spreading  through 
and  tainting  the  nation  at  large. 

8.  Federalism,  by  creating  many  local  legislatures  with  wide 
powers,  relieves  the  National  legislature  of  a  part  of  that  large 
mass  of  functions  which  might  otherwise  prove  too  heavy  for 
it.  Thus  business  is  more  promptly  despatched,  and  the  great 
central  council  of  the  nation  has  time  to  deliberate  on  those 
questions  which  most  nearly  touch  the  whole  country. 


chap,  xxix  MERITS  OF  THE  FEDERAL  SYSTEM 


251 


All  of  these  arguments  recommending  Federalism  have 
proved  valid  in  American  experience. 

To  create  a  nation  while  preserving  the  States  was  the  main 
reason  for  the  grant  of  powers  which  the  National  government 
received;  an  all-sufficient  reason,  and  one  which  holds  good 
to-day.  The  several  States  have  changed  greatly  since  1789, 
but  they  are  still  commonwealths  whose  wide  authority  and 
jurisdiction  practical  men  are  agreed  in  desiring  to  maintain. 

Not  much  was  said  in  the  Convention  of  1787  regarding  the 
best  methods  of  extending  government  over  the  unsettled  terri¬ 
tories  lying  beyond  the  Alleghany  Mountains.1  It  was,  however, 
assumed  that  they  would  develop  as  the  older  colonies  had  de¬ 
veloped,  and  in  point  of  fact  each  district,  when  it  became 
sufficiently  populous,  was  formed  into  a  self-governing  State, 
the  less  populous  divisions  still  remaining  in  the  status  of 
semi-self-governing  territories. 

The  utility  of  the  State  system  in  localizing  disorders  or 
discontents,  and  the  opportunities  it  affords  for  trying  easily 
and  safely  experiments  which  ought  to  be  tried  in  legislation 
and  administration,  constitute  benefits  to  be  set  off  against 
the  risks,  referred  to  in  the  last  preceding  chapters,  that  evils 
may  continue  in  a  district,  may  work  injustice  to  a  minority 
and  invite  imitation  by  other  States,  which  the  wholesome 
stringency  of  the  central  government  might  have  suppressed. 

A  more  unqualified  approval  may  be  given  to  the  division 
of  legislative  powers.  The  existence  of  the  State  legislatures 
relieves  Congress  of  a  burden  too  heavy  for  its  shoulders ;  for 
although  it  has  far  less  foreign  policy  to  discuss  than  the 
Parliaments  of  England,  France,  or  Italy,  and  although  the 
separation  of  the  executive  from  the  legislative  department 
gives  it  less  responsibility  for  the  ordinary  conduct  of  the 
administration  than  devolves  on  those  chambers,  it  could  not 
possibly,  were  its  competence  as  large  as  theirs,  deal  with  the 
multiform  and  increasing  demands  of  the  different  parts  of 
the  Union.  There  is  great  diversity  in  the  material  condi¬ 
tions  of  different  parts  of  the  country,  and  at  present  the 
people,  particularly  in  the  West,  are  eager  to  have  their  diffi¬ 
culties  handled,  their  economic  and  social  needs  satisfied,  by 

1  In  1787,  however,  the  great  Ordinance  regulating  the  North-weet  Terri* 
tory  was  enacted  by  the  Congress  of  the  Confederation 


252 


THE  NATIONAL  GOVERNMENT 


PART  1 


the  State  and  the  law.  How  little  Congress  could  satisfy 
them  appears  by  the  very  imperfect  success  with  which  it 
cultivates  the  field  of  legislation  to  which  it  is  now  limited. 

These  merits  of  the  Federal  system  of  government  which  I 
have  enumerated  are  the  counterpart  and  consequences  of  that 
limitation  of  the  central  authority  whose  dangers  were  indi¬ 
cated  in  the  last  chapter.  They  are,  if  one  may  reverse  the 
French  phrase,  the  qualities  of  Federalism’s  defects.  The  prob¬ 
lem  which  all  federalized  nations  have  to  solve  is  how  to  se¬ 
cure  an  efficient  central  government  and  preserve  National 
unity,  while  allowing  free  scope  for  the  diversities,  and  free  play 
to  the  authorities,  of  the  members  of  the  federation.  It  is,  to 
adopt  that  favourite  astronomical  metaphor  which  no  American 
panegyrist  of  the  Constitution  omits,  to  keep  the  centrifugal 
and  centripetal  forces  in  equilibrium,  so  that  neither  the 
planet  States  shall  fly  off  into  space,  nor  the  sun  of  the  cen¬ 
tral  government  draw  them  into  its  consuming  fires.  The 
characteristic  merit  of  the  American  Constitution  lies  in  the 
method  by  which  it  has  solved  this  problem.  It  has  given 
the  National  government  a  direct  authority  over  all  citi¬ 
zens,  irrespective  of  the  State  governments,  and  has  there¬ 
fore  been  able  safely  to  leave  wide  powers  in  the  hands  of 
those  governments.  And  by  placing  the  Constitution  above 
both  the  National  and  the  State  governments,  it  has  referred 
the  arbitrament  of  disputes  between  them  to  an  independent 
body,  charged  with  the  interpretation  of  the  Constitution,  a 
body  which  is  to  be  deemed  not  so  much  a  third  authority  in 
the  government  as  the  living  voice  of  the  Constitution,  the  un¬ 
folder  of  the  mind  of  the  people  whose  will  stands  expressed 
in  that  supreme  instrument. 

The  application  of  these  two  principles,  unknown  to,  or  at 
any  rate  little  used  by,  any  previous  federation,  has  contrib¬ 
uted  more  than  anything  else  to  the  stability  of  the  American 
system,  and  to  the  reverence  which  its  citizens  feel  for  it,  a 
reverence  which  is  the  best  security  for  its  permanence.  Yet 
even  these  devices  would  not  have  succeeded  but  for  the  pres¬ 
ence  of  a  mass  of  moral  and  material  influences  stronger  than 
any  political  devices,  which  have  maintained  the  equilibrium 
of  centrifugal  and  centripetal  forces.  On  the  one  hand  there 
has  been  the  love  of  local  independence  and  self-government  $ 

B  f 


chap,  xxix  MERITS  OF  THE  FEDERAL  SYSTEM 


253 


on  the  other,  the  sense  of  community  in  blood,  in  language,  in 
habits  and  ideas,  a  common  pride  in  the  National  history  and 
the  National  flag. 

Quid  leges  sine  moribus?  The  student  of  institutions,  as  well 
as  the  lawyer,  is  apt  to  overrate  the  effect  of  mechanical  con¬ 
trivances  in  politics.  I  admit  that  in  America  they  have  had 
one  excellent  result;  they  have  formed  a  legal  habit  in  the 
mind  of  the  nation.  But  the  true  value  of  a  political  contriv¬ 
ance  resides  not  in  its  ingenuity  but  in  its  adaptation  to  the 
temper  and  circumstances  of  the  people  for  whom  it  is  designed, 
in  its  power  of  using,  fostering,  and  giving  a  legal  form  to  those 
forces  of  sentiment  and  interest  which  it  finds  in  being.  So  it 
has  been  with  the  American  system.  Just  as  the  passions 
which  the  question  of  slavery  evoked  strained  the  Federal 
fabric,  disclosing  unforeseen  weaknesses,  so  the  love  of  the 
Union,  the  sense  of  the  material  and  social  benefits  involved 
in  its  preservation,  appeared  in  unexpected  strength,  and 
manned  with  zealous  defenders  the  ramparts  of  the  sovereign 
Constitution.  It  is  this  need  of  determining  the  suitability  of 
the  machinery  for  the  workmen  and  its  probable  influence 
upon  them,  as  well  as  the  capacity  of  the  workmen  for  using 
and  their  willingness  to  use  the  machinery,  which  makes  it  so 
difficult  to  predict  the  operation  of  a  political  contrivance,  or, 
when  it  has  succeeded  in  one  country,  to  advise  its  imitation 
in  another.  The  growing  strength  of  the  National  government 
in  the  United  States  is  largely  due  to  sentimental  forces  that 
were  weak  a  century  ago,  and  to  a  development  of  internal 
communications  which  was  then  undreamt  of.  And  the  de¬ 
vices  which  we  admire  in  the  Constitution  might  prove  un¬ 
workable  among  a  people  less  patriotic  and  self-reliant,  less 
law-loving  and  law-abiding,  than  are  the  (English  of  America. 

6t>'zc*s 


CHAPTER  XXX 


THE  AMENDMENT  OF  THE  CONSTITUTION 

The  men  who  sat  in  the  Convention  of  1787  were  not  san¬ 
guine  enough,  like  some  of  the  legislating  sages  of  antiquity, 
or  like  such  imperial  codifiers  as  the  Emperor  Justinian,  to 
suppose  that  their  work  could  stand  unaltered  for  all  time  to 
come.  They  provided  (Art.  v.)  that  “  Congress,  whenever 
two-thirds  of  both  houses  shall  deem  it  necessary,  shall  pro¬ 
pose  amendments  to  this  Constitution,  or  on  the  application 
of  the  legislatures  of  two-thirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either  case, 
shall  be  valid  to  all  intents  and  purposes  as  part  of  this  Consti¬ 
tution  when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  States,  or  by  conventions  in  three-fourths  thereof,  as 
the  one  or  the  other  mode  may  be  proposed  by  the  Congress. ” 

There  are  therefore  two  methods  of  framing  and  proposing 
amendments. 

(A)  Congress  may  itself,  by  a  two-thirds  vote  in  each  house, 
prepare  and  propose  amendments. 

(B)  The  legislatures  of  two-thirds  of  the  States  may  require 
Congress  to  summon  a  Constitutional  Convention.  Congress 
shall  thereupon  do  so,  having  no  option  to  refuse ;  and  the 
Convention  when  called  shall  draft  and  submit  amendments. 
No  provision  is  made  as  to  the  election  and  composition  of  the 
Convention,  matters  which  would  therefore  appear  to  be  left 
to  the  discretion  of  Congress. 

There  are  also  two  methods  of  enacting  amendments  framed 
and  proposed  in  either  of  the  foregoing  ways.  It  is  left  to 
Congress  to  propose  one  or  other  method  as  Congress  may 
think  fit. 

(X)  The  legislatures  of  three-fourths  of  the  States  may 
ratify  any  amendments  submitted  to  them. 

254 


chap,  xxx  AMENDMENT  OF  THE  CONSTITUTION 


255 


(Y)  Conventions  may  be  called  in  the  several  States,  and 
three-fourths  of  these  Conventions  may  ratify. 

On  all  the  occasions  on  which  the  amending  power  has  been 
exercised,  method  A  has  been  employed  for  proposing  and 
method  X  for  ratifying  —  i.e.  no  drafting  Conventions  of  the 
whole  Union  or  ratifying  Conventions  in  the  several  States  have 
ever  been  summoned.  The  preference  of  the  action  of  Con¬ 
gress  and  the  State  legislatures  may  be  ascribed  to  the  fact 
that  it  has  never  been  desired  to  remodel  the  whole  Constitu¬ 
tion,  but  only  to  make  changes  or  additions  on  special  points. 
Moreover,  the  procedure  by  National  and  State  Conventions 
might  be  slower,  and  would  involve  controversy  over  the 
method  of  electing  those  bodies.  The  consent  of  the  President 
is  not  required  to  a  constitutional  amendment.  A  two-thirds 
majority  in  Congress  can  override  his  veto  of  a  bill,  and  at 
least  that  majority  is  needed  to  bring  a  constitutional  amend¬ 
ment  before  the  people. 

There  is  only  one  provision  of  the  Constitution  which  cannot 
be  changed  by  this  process.  It  is  that  which  secures  to  each 
and  every  State  equal  representation  in  one  branch  of  the  legis¬ 
lature.  “No  State  without  its  consent  shall  be  deprived  of 
its  equal  suffrage  in  the  Senate  ”  (Art.  v.).  It  will  be  observed 
that  this  provision  does  not  require  unanimity  on  the  part 
of  the  States  to  a  change  diminishing  or  extinguishing  State 
representation  in  the  Senate,  but  merely  gives  any  particular 
State  proposed  to  be  effected  an  absolute  veto  on  the  proposal. 
If  a  State  were  to  consent  to  surrender  its  rights,  and  three- 
fourths  of  the  whole  number  to  concur,  the  resistance  of  the 
remaining  fourth  would  not  prevent  the  amendment  from  taking 
effect. 

The  amendments  made  by  the  above  process  (A  -f-  X)  to  the 
Constitution  have  been  in  all  fifteen  in  number.  These  have 
been  made  on  four  occasions,  and  fall  into  four  groups,  two  of 
which  consist  of  one  amendment  each.  The  first  group,  in¬ 
cluding  ten  amendments  made  immediately  after  the  adoption 
of  the  Constitution,  ought  to  be  regarded  as  a  supplement  or 
postscript  to  it,  rather  than  as  changing  it.  They  constitute 
what  the  Americans,  following  the  English  precedent,  call  a 
Bill  of  Rights,  securing  the  individual  citizen  and  the  States 
against  the  encroachments  of  Federal  power.  The  second  and 


256 


THE  NATIONAL  GOVERNMENT 


PART  I 


third  groups,  if  a  single  amendment  can  be  properly  called  a 
group  (viz.  amendments  xi.  and  xii.)  are  corrections  of  minor 
defects  which  had  disclosed  themselves  in  the  working  of  the 
Constitution.  The  fourth  group  is  the  only  one  which  marked 
a  political  crisis  and  registered  a  political  victory.  It  comprises 
three  amendments  (xiii.,  xiv.,  xv.)  which  forbid  slavery,  define 
citizenship,  secure  the  suffrage  of  citizens  against  attempts  by 
States  to  discriminate  to  the  injury  of  particular  classes,  and 
extend  Federal  protection  to  those  citizens  who  may  suffer 
from  the  operation  of  certain  kinds  of  unjust  State  laws. 
These  three  amendments  are  the  outcome  of  the  War  of  Seces¬ 
sion,  and  were  needed  in  order  to  confirm  and  secure  for  the 
future  its  results.  The  requisite  majority  of  States  was  ob¬ 
tained  under  conditions  altogether  abnormal,  some  of  the  lately 
conquered  States  ratifying  while  actually  controlled  by  the 
Northern  armies,  others  as  the  price  which  they  were  obliged 
to  pay  for  the  re-admission  to  Congress  of  their  senators  and 
representatives.  The  details  belong  to  history:  all  we  need 
here  note  is  that  these  deep-reaching,  but  under  the  circum¬ 
stances  perhaps  unavoidable,  changes  were  carried  through 
not  by  the  free  will  of  the  peoples  of  three-fourths  of  the 
States,  but  under  the  pressure  of  a  majority  which  had  tri¬ 
umphed  in  a  great  war,  and  used  its  command  of  the  National 
government  and  military  strength  of  the  Union  to  effect  pur¬ 
poses  deemed  indispensable  to  the  reconstruction  of  the  Fed¬ 
eral  system. 

Many  amendments  to  the  Constitution  have  been  at  va¬ 
rious  times  suggested  to  Congress  by  Presidents,  or  bronght 
forward  in  Congress  by  members,  but  very  few  of  these 
have  ever  obtained  the  requisite  two-thirds  vote  of  both 
Houses. 

The  moral  of  these  facts  is  not  far  to  seek.  Although  it 
has  long  been  the  habit  of  the  Americans  to  talk  of  their  Con¬ 
stitution  with  almost  superstitious  reverence,  there  have  often 
been  times  when  leading  statesmen,  perhaps  even  political 
parties,  would  have  materially  altered  it  if  they  could  have 
done  so.  There  have,  moreover,  been  some  alterations  sug¬ 
gested  in  it,  which  the  impartial  good  sense  of  the  wise  would 
have  approved,  but  which  have  never  been  submitted  to  the 
States,  because  it  was  known  they  could  not  be  carried  by  the 


chap,  xxx  AMENDMENT  OF  THE  CONSTITUTION 


257 


requisite  majority.1  If,  therefore,  comparatively  little  use 
has  been  made  of  the  provisions  for  amendment,  this  has 
been  due  not  solely  to  the  excellence  of  the  original  instru¬ 
ment,  but  also  to  the  difficulties  which  surround  the  process  of 
c  ange.  Alterations,  though  perhaps  not  large  alterations, 
have  been  needed,  to  cure  admitted  faults  or  to  supply  dan¬ 
gerous  omissions,  but  the  process  has  been  so  difficult  that  it 

as  never  been  successfully  applied,  except  either  to  matters 
ot  minor  consequence  involving  no  party  interests  (Amend¬ 
ments  xi  and  xu.),  or  in  the  course  of  a  revolutionary  move¬ 
ment  which  had  dislocated  the  Union  itself  (Amendments 

Xlll.,  XIV.,  XV.).  V 

Why  then  has  the  regular  procedure  for  amendment  proved 
in  practice  so  hard  to  apply  ? 

Partly,  of  course,  owing  to  the  inherent  disputatiousness  and 
perversity  of  bodies  of  men.  It  is  difficult  to  get  two-thirds  of 
two  assemblies  (the  Houses  of  Congress)  and  three-fourths  of 
iorty-five  commonwealths,  each  of  which  acts  by  two  as¬ 
semblies,  for  the  State  legislatures  are  all  double-chambered 
to  agree  to  the  same  practical  proposition.  Except  under  the 
pressure  of  urgent  troubles,  such  as  were  those  which  procured 
the  acceptance  of  the  Constitution  itself  in  1788,  few  persons 
or  bodies  will  consent  to  forego  objections  of  detail,  perhaps 
m  themselves  reasonable,  for  the  mere  sake  of  agreeing  to 


In  the  forty-ninth  Congress  (1884-6)  no  fewer  than  forty-seven  proposi¬ 
tions  were  introduced  for  the  amendment  of  the  Constitution,  some  of  E  of 
a  sweeping  several  of  a  rather  complex,  nature.  (Some  of  these  covered  the 

S°  the  t?tal nuraber  of  alterations  proposed  was  less  than  forty- 
se\  en  )  None  seems  to  have  been  voted  on  by  Congress ;  and  only  five  or  sfx 

toTotnU  en°US  consideration-  One  at  least,  that  enabling  the  President 
Zlt  i  ln  an  apPr°l)nation  bill>  would  have  effected  a  great  improve- 
ent.  I  find  among  them  the  following  proposals  :  To  prohibit  the  sale  of 
alcoholic  liquors  to  forbid  polygamy,  to  confer  the  suffrage  on  women  to  vest 
he  election  of  the  President  directly  in  the  people,  to  fleet  reZsentaJves 
r  three  instead  of  two  years,  to  choose  senators  by  popular  election  to  em¬ 
power  Congress  to  limit  the  hours  of  labour,  to  empower  cfngre^’to  pa^ 
uniform  laws  regarding  marriage  and  divorce,  to  enable  the  people  to  e^ect 

enactment  mlorS^Co  t0  forbid  ,Con^refs  to  Pass  any  local  private  or  special 
enactment  to  forbid  Congress  to  direct  the  payment  of  claims  le-allv  barred 

by  lapse  of  time,  to  forbid  the  States  to  hire  out  the  labour  of  prisoners. 

n  the  first  session  of  the  fifty-first  Congress  twenty-eight  such  propositions 

were  introduced  including  proposals  for  the  prohibition  of  lotteries  to  sun- 

press  trusts  and  prohibit  gambling  in  agricultural  products  to  modifv  the 

clause  in  the  Federal  Constitution  regarding  the  obligation  of’contracts/ 


258 


THE  NATIONAL  GOVERNMENT 


PART  I 


what  others  have  accepted.  They  want  to  have  what  seems 
to  themselves  the  very  best,  instead  of  a  second  best  suggested 
by  some  one  else.  Now,  bodies  enjoying  so  much  legal  inde¬ 
pendence  as  do  the  legislatures  of  the  States,  far  from  being 
disposed  to  defer  to  Congress  or  to  one  another,  are  more  jeal¬ 
ous,  more  suspicious,  more  vain  and  opinionated,  than  so  many 
individuals.  Nothing  but  a  violent  party  spirit,  seeking  either 
a  common  party  object  or  individual  gain  to  flow  from  party 

success,  makes  them  work  together. 

If  an  amendment  comes  to  the  legislatures  recommended 
by  the  general  voice  of  their  party,  they  will  be  quick  to  adopt 
it.  But  in  that  case  it  will  encounter  the  hostility  of  the  op¬ 
posite  party,  and  parties  are  in  most  of  the  northern  States 
pretty  evenly  balanced.  It  is  seldom  that  a  two- thirds  major¬ 
ity  in  either  House  of  Congress  can  be  secured  on  a  party  issue ; 
and  of  course  such  majorities  in  both  Houses,  and  a  three- 
fourths  majority  of  State  legislatures  on  a  party  issue,  are  still 
less  probable.  Now,  in  a  country  pervaded  by  the  spirit  of 
party,  most  questions  either  are  at  starting,  or  soon  become 
controversial.  A  change  in  the  Constitution,  however  useful 
its  ultimate  consequences,  is  likely  to  be  for  the  moment  deemed 
more  advantageous  to  one  party  than  to  the  other,  and  this  is 
enough  to  make  the  other  party  oppose  it.  The  mere  fact  that 
a  proposal  comes  from  one  side,  rouses  the  suspicion  of  the 

other.  .  „  .  . , 

It  is  evident  when  one  considers  the  nature  of  a  rigid  or 
supreme  Constitution,  that  some  method  of  altering  it  so  as  to 
make  it  conform  to  altered  facts  and  ideas  is  indispensable.  A 
European  critic  may  remark  that  the  American  method  has 
failed  to  answer  the  expectations  formed  of  it. .  The  belief,  he 
will  say,  of  its  authors  was  that  while  nothing  less  than  a 
general  agreement  would  justify  alteration,  that  agreement 
would  exist  when  omissions  impeding  its  working  were  dis¬ 
covered.  But  this  has  not  come  to  pass.  There  have  been 
long  and  fierce  controversies  over  the  construction  of  sev¬ 
eral  points  in  the  Constitution,  over  the  right  of  Congress 
to  spend  money  on  internal  improvements,  to  charter  a 
National  bank,  to  impose  a  protective  tariff,  above  all,  over 
the  treatment  of  slavery  in  the  Territories.  But  the  method 
of  amendment  was  not  applied  to  any  of  these  questions, 


chap,  xxx  AMENDMENT  OF  THE  CONSTITUTION 


259 


because  no  general  agreement  could  be  reached  upon  them 
or  indeed  upon  any  but  secondary  matters.  So  the  strug¬ 
gle  over  the  interpretation  of  a  document  which  it  was 

WHd  fimia°SS1Ab  6  t0  amend>  Passed  fr°m  the  law  courts  to  the 
battle-held.  Americans  reply  to  such  criticisms  by  observing 

that  the  power  of  amending  the  Constitution  is  one  which  can¬ 
not  prudently  be  employed  to  conclude  current  political  con¬ 
troversies,  that  if  it  were  so  used  no  Constitution  could  be  either 
rigid  or  reasonably  permanent,  that  some  latitude  of  construc¬ 
tion  is  desirable,  and  that  in  the  above-mentioned  cases  amend- 
ments  excluding  absolutely  one  or  other  of  the  constructions 

tightlv  o  E  T  t  ^  haTO  tied  down  the  legislature  too 
t  ghtly  01  have  hastened  a  probably  inevitable  conflict. 


CHAPTER  XXXI 

THE  INTERPRETATION  OF  THE  CONSTITUTION 

History  knows  few  instruments  which  in  so  few  words  lay 
down  equally  momentous  rules  on  a  vast  range  of  matters  of 
the  highest  importance  and  complexity  as  the  Constitution  of 
the  United  States.  The  Convention  of  1787  were  well  advised 
in  making  their  draft  short,  because  it  was  essential  that  the 
people  should  comprehend  it,  because  fresh  differences  of  view 
would  have  emerged  the  further  they  had  gone  into  details, 
and  because  the  more  one  specifies,  the  more  one  has  to  specify 
and  to  attempt  the  impossible  task  of  providing  beforehand 
for  all  contingencies.  These  sages  were  therefore  content  to 
lay  down  a  few  general  rules  and  principles,  leaving  some 
details  to  be  filled  in  by  congressional  legislation,  and  foie- 
seeing  that  for  others  it  would  be  necessary  to  trust  to  inter¬ 
pretation. 

It  is  plain  that  the  shorter  a  law  is,  the  more  general  must 
its  language  be,  and  the  greater  therefore  the  need  for  interpre¬ 
tation.  So  too  the  greater  the  range  of  a  law,  and  the  more 
numerous  and  serious  the  cases  which  it  governs,  the  more 
frequently  will  its  meaning  be  canvassed.  There  have  been 
statutes  dealing  with  private  law,  such  as  the  Lex  Aquilia  at 
Rome  and  the  Statute  of  Frauds  in  England,  on  which  many 
volumes  of  commentaries  have  been  written,  and  thousands  of 
juristic  and  judicial  constructions  placed.  Much  more  then 
must  we  expect  to  find  great  public  and  constitutional  enact¬ 
ments  subjected  to  the  closest  scrutiny  in  order  to  discover 
every  shade  of  meaning  which  their  words  can  be  made  to  bear. 
Probably  no  writing  except  the  New  Testament,  the  Koran, 
the  Pentateuch,  and  the  Digest  of  the  Emperor  Justinian,  has 
employed  so  much  ingenuity  and  labour  as  the  American  Con¬ 
stitution,  in  sifting,  weighing,  comparing,  illustrating,  twisting, 
and  torturing  its  text. 

260 


chap,  xxxi  INTERPRETATION  OF  THE  CONSTITUTION 


261 


The  Constitution  of  the  United  States  is  so  concise  and  so 
general  in  its  terms,  that  even  had  America  been  as  slowly 
moving  a  country  as  China,  many  questions  must  have  arisen 
on  the  interpretation  of  the  fundamental  law  which  would  have 
modified  its  aspect.  But  America  has  been  the  most  swiftly 
expanding  of  all  countries.  Hence  the  questions  that  have 
presented  themselves  have  often  related  to  matters  which  the 
framers  of  the  Constitution  could  not  have  contemplated. 
Wiser  than  Justinian  before  them  or  Napoleon  after  them, 
they  foresaw  that  their  work  would  need  to  be  elucidated  by 
judicial  commentary.  But  they  were  far  from  conjecturing 
the  enormous  strain  to  which  some  of  their  expressions  would 
be  subjected  in  the  effort  to  apply  them  to  new  facts. 

I  must  not  venture  on  any  general  account  of  the  interpreta¬ 
tion  of  the  Constitution,  nor  attempt  to  set  forth  the  rules  of 
construction  laid  down  by  judges  and  commentators,  for  this 
is  a  vast  matter  and  a  matter  for  law  books.  All  that  this 
chapter  has  to  do  is  to  indicate,  very  generally,  in  what  way 
and  with  what  results  the  Constitution  has  been  expanded, 
developed,  modified,  by  interpretation ;  and  with  that  view 
there  are  three  points  that  chiefly  need  discussion :  (1)  the 
authorities  entitled  to  interpret  the  Constitution,  (2)  the  main 
principles  followed  in  determining  whether  or  no  the  Consti¬ 
tution  has  granted  certain  powers,  (3)  the  checks  on  possible 
abuses  of  the  interpreting  power. 

I.  To  whom  does  it  belong  to  interpret  the  Constitution  ? 
Any  question  arising  in  a  legal  proceeding  as  to  the  meaning 
and  application  of  this  fundamental  law  will  evidently  be 
settled  by  the  courts  of  law.  Every  court  is  equally  bound  to 
pronounce  and  competent  to  pronounce  on  such  questions,  a 
State  court  no  less  than  a  Federal  court;  but  as  all  the  more 
important  questions  are  carried  by  appeal  to  the  supreme 
Federal  court,  it  is  practically  that  court  whose  opinion  finally 
determines  them. 

Where  the  Federal  courts  have  declared  the  meaning  of  a 
law,  every  one  ought  to  aocept  and  guide  himself  by  their 
deliverance.  But  there  are  always  questions  of  construction 
which  have  not  been  settled  by  the  courts,  some  because  they 
have  not  happened  to  arise  in  a  law-suit,  others  because  they 
are  such  as  can  scarcely  arise  in  a  law-suit.  As  regards  such 


262 


THE  NATIONAL  GOVERNMENT 


part  r 


points,  every  authority,  Federal  or  Stale,  as  well  as  every 
citizen,  must  be  guided  by  the  best  view  he  or  they  can  form 
of  the  true  intent  and  meaning  of  the  Constitution,  taking,  of 
course,  the  risk  that  this  view  may  turn  out  to  be  wrong. 

There  are  also  points  of  construction  which  every  court, 
following  a  well-established  practice,  will  refuse  to  decide, 
because  they  are  deemed  to  be  of  “  a  purely  political  nature,”  a 
vague  description,  but  one  which  could  be  made  more  specific 
only  by  an  enumeration  of  the  cases  which  have  settled  the 
practice.  These  points  are  accordingly  left  to  the  discretion 
of  the  executive  and  legislative  powers,  each  of  which  forms 
its  view  as  to  the  matters  falling  within  its  sphere,  and  in 
acting  on  that  view  is  entitled  to  the  obedience  of  the  citizens 
and  of  the  States  also. 

It  is  therefore  an  error  to  suppose  that  the  judiciary  is  the 
only  interpreter  of  the  Constitution,  for  a  certain  field  remains 
open  to  the  other  authorities  of  the  government,  whose  views 
need  not  coincide,  so  that  a  dispute  between  those  authorities, 
although  turning  on  the  meaning  of  the  Constitution,  may  be 
incapable  of  being  settled  by  any  legal  proceeding.  This 
causes  no  great  confusion,  because  the  decision,  whether  of 
the  political  or  the  judicial  authority,  is  conclusive  so  far  as 
regards  the  particular  controversy  or  matter  passed  upon. 

II.  The  Constitution  has  been  expanded  by  construction  in 
two  ways.  Powers  have  been  exercised,  sometimes  by  the 
President,  more  often  by  the  legislature,  in  passing  statutes, 
and  the  question  has  arisen  whether  the  powers  so  exercised 
were  rightfully  exercised,  i.e.  were  really  contained  in  the 
Constitution.  When  the  question  was  resolved  in  the  affirma¬ 
tive  by  the  court,  the  power  has  been  henceforth  recognized  as 
a  part  of  the  Constitution,  although,  of  course,  liable  to  be 
subsequently  denied  by  a  reversal  of  the  decision  which  estab¬ 
lished  it.  This  is  one  way.  The  other  is  where  some  piece  of 
State  legislation  alleged  to  contravene  the  Constitution  has 
been  judicially  decided  to  contravene  it,  and  to  be  therefore 
invalid.  The  decision,  in  narrowing  the  limits  of  State  author¬ 
ity,  tends  to  widen  the  prohibitive  authority  of  the  Constitu¬ 
tion,  and  confirms  it  in  a  range  and  scope  of  action  which  was 
previously  doubtful. 

Questions  of  the  above  kinds  sometimes  arise  as  questions  of 


ciiap.  xxxi  INTERPRETATION  OF  THE  CONSTITUTION 


263 


Interpretation  in  the  strict  sense  of  the  term,  i.e.  as  questions 
of  the  meaning  of  a  term  or  phrase  which  is  so  far  ambiguous 
that  it  might  be  taken  either  to  cover  or  not  to  cover  a  case 
apparently  contemplated  by  the  people  when  they  enacted  the 
Constitution.  Sometimes  they  are  rather  questions  to  which 
we  may  apply  the  name  of  Construction,  i.e.  the  case  that  has 
arisen  is  one  apparently  not  contemplated  by  the  enactors  of 
the  Constitution,  or  one  which,  though  possibly  contemplated, 
has  for  brevity’s  sake  been  omitted ;  but  the  Constitution  has 
nevertheless  to  be  applied  to  its  solution. 

Now  the  doctrines  laid  down  by  Chief- Justice  Marshall,  and 
on  which  the  courts  have  constantly  since  proceeded,  may  be 
summed  up  in  two  propositions. 

1.  Every  power  alleged  to  be  vested  in  the  National  govern¬ 
ment,  or  any  organ  thereof,  must  be  affirmatively  shown  to 
have  been  granted.  There  is  no  presumption  in  favour  of  the 
existence  of  a  power ;  on  the  contrary,  the  burden  of  proof 
lies  on  those  who  assert  its  existence,  to  point  out  something 
in  the  Constitution  which,  either  expressly  or  by  necessary  im¬ 
plication,  confers  it.  Just  as  an  agent,  claiming  to  act  on  be¬ 
half  of  his  principal,  must  make  out  by  positive  evidence  that 
his  principal  gave  him  the  authority  he  relies  on ;  so  Congress, 
or  those  who  rely  on  one  of  its  statutes,  are  bound  to  show  that 
the  people  have  authorized  the  legislature  to  pass  the  statute. 
The  search  for  the  power  will  be  conducted  in  a  spirit  of  strict 
exactitude,  and  if  there  be  found  in  the  Constitution  nothing 
which  directly  or  impliedly  conveys  it,  then  whatever  the  ex¬ 
ecutive  or  legislature  of  the  National  government,  or  both  of 
them  together,  may  have  done  in  the  persuasion  of  its  existence, 
must  be  deemed  null  and  void,  like  the  act  of  any  other  unau¬ 
thorized  agent.1 

2.  When  once  the  grant  of  a  power  by  the  people  to  the 

1  For  instance,  several  years  ago  a  person  summoned  as  a  witness  before  a 
committee  of  the  House  of  Representatives  was  imprisoned  by  order  of  the 
House  for  refusing  to  answer  certain  questions  put  to  him.  He  sued  the  ser- 
geaut-at-arms  for  false  imprisonment,  and  recovered  damages,  the  Supreme 
Court  holding  that  as  the  Constitution  could  not  be  shown  to  have  conferred 
on  either  House  of  Congress  any  power  to  punish  for  contempt,  that  power 
(though  frequently  theretofore  exercised)  did  not  exist,  and  the  order  of  the 
House  therefore  constituted  no  defence  for  the  sergeant’s  act  ( Kilbourn  v. 
Thompson ,  103  U.  S.  168). 


264 


THE  NATIONAL  GOVERNMENT 


PART  1 


National  government  has  been  established,  that  power  will  be 
construed  broadly.  The  strictness  applied  in  determining  its 
existence  gives  place  to  liberality  in  supporting  its  application. 
The  people, —  so  Marshall  and  his  successors  have  argued,  — 
when  they  confer  a  power,  must  be  deemed  to  confer  a  wide  dis¬ 
cretion  as  to  the  means  whereby  it  is  to  be  used  in  their  service. 
For  their  main  object  is  that  it  should  be  used  vigorously  and 
wisely,  which  it  cannot  be  if  the  choice  of  methods  is  narrowly 
restricted ;  and  while  the  people  may  well  be  chary  in  delegat¬ 
ing  powers  to  their  agents,  they  must  be  presumed,  when  they 
do  grant  these  powers,  to  grant  them  with  confidence  in  the 
agents’  judgment,  allowing  all  that  freedom  in  using  one  means 
or  another  to  attain  the  desired  end  which  is  needed  to  ensure 
success.1  This,  which  would  in  any  case  be  the  common-sense 
view,  is  fortified  by  the  language  of  the  Constitution,  which 
authorizes  Congress  “  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the  gov¬ 
ernment  of  the  United  States,  or  in  any  department  or  office 
thereof.”  The  sovereignty  of  the  National  government,  there¬ 
fore,  “  though  limited  to  specified  objects,  is  plenary  as  to  those 
objects  ”  and  supreme  in  its  sphere.  Congress,  which  cannot 
go  one  step  beyond  the  circle  of  action  which  the  Constitution 
has  traced  for  it,  may  within  that  circle  choose  any  means 
which  it  deems  apt  for  executing  its  powers,  and  is  in  its 
choice  of  means  subject  to  no  review  by  the  courts  in  their 
function  of  interpreters,  because  the  people  have  made  their 
representatives  the  sole  and  absolute  judges  of  the  mode  in 
which  the  granted  powers  shall  be  employed.  This  doctrine 
of  implied  powers,  and  the  interpretation  of  the  words  “  neces¬ 
sary  and  proper,”  were  for  many  years  a  theme  of  bitter  and 
incessant  controversy  among  American  lawyers  and  publicists. 

The  three  lines  along  which  this  development  of  the  implied 
powers  of  the  government  has  chiefly  progressed,  have  been 
those  marked  out  by  the  three  express  powers  of  taxing  and 
borrowing  money,  of  regulating  commerce,  and  of  carrying  on 

» 

1  For  instance,  Congress  having  power  to  declare  war,  has  power  to  prose¬ 
cute  it  by  all  means  necessary  for  success,  and  to  acquire  territory  either  by 
conquest  or  treaty.  Having  power  to  borrow  money,  Congress  may,  if  it  thinks 
fit,  issue  treasury  notes,  and  may  make  them  legal  tender. 


chap,  xxxi  INTERPRETATION  OF  THE  CONSTITUTION 


265 


war.  Each  has  produced  a  progeny  of  subsidiary  powers,  some 
of  which  have  in  their  turn  been  surrounded  by  an  unexpected 
offspring.  Thus  from  the  taxing  and  borrowing  powers  there 
sprang  the  powers  to  charter  a  National  bank  and  exempt  its 
branches  and  its  notes  from  taxation  by  a  State  (a  serious 
restriction  on  State  authority),  to  create  a  system  of  custom¬ 
houses  and  revenue  cutters,  to  establish  a  tariff  for  the  protec¬ 
tion  of  native  industry.  Thus  the  regulation  of  commerce  has 
been  construed  to  include  legislation  regarding  every  kind  of 
transportation  of  goods  and  passengers,  whether  from  abroad 
or  from  one  State  to  another,  regarding  navigation,  maritime 
and  internal  pilotage,  maritime  contracts,  etc.,  together  with 
the  control  of  all  navigable  waters  not  situate  wholly  within 
the  limits  of  one  State,  the  construction  of  all  public  works 
helpful  to  commerce  between  States  or  with  foreign  countries, 
the  power  to  prohibit  immigration,  and  finally  a  power  to  es¬ 
tablish  a  railway  commission  and  control  all  inter-State  traffic. 
The  war  power  proved  itself  even  more  elastic.  The  executive 
and  the  majority  in  Congress  found  themselves  during  the 
War  of  Secession  obliged  to  stretch  this  power  to  cover  many 
acts  trenching  on  the  ordinary  rights  of  the  States  and  of  indi¬ 
viduals,  till  there  ensued  something  which,  fifty  years  earlier, 
would  have  been  deemed  to  approach  a  suspension  of  constitu¬ 
tional  guarantees  in  favour  of  the  Federal  government. 

The  courts  have  occasionally  gone  even  further  afield,  and 
have  professed  to  deduce  certain  powers  of  the  legislature 
from  the  sovereignty  inherent  in  the  National  government. 
In  its  last  decision  on  the  legal  tender  question,  a  majority  of 
the  Supreme  Court  seems  to  have  placed  upon  this  ground, 
though  with  special  reference  to  the  section  enabling  Congress 
to  borrow  money,  its  affirmance  of  that  competence  of  Congress 
to  declare  paper  money  a  legal  tender  for  debts,  which  the 
earlier  decision  of  1871  had  referred  to  the  war  power.  This 
position  evoked  a  controversy  of  wide  scope,  for  the  question 
what  sovereignty  involves  belongs  as  much  to  political  as  to 
legal  science,  and  may  be  pushed  to  great  lengths  upon  consid¬ 
erations  with  which  law  proper  has  little  to  do. 

The  above-mentioned  instances  of  development  have  been 
worked  out  by  the  courts  of  law.  But  others  are  due  to  the 
action  of  the  executive,  or  of  the  executive  and  Congress  com 


266 


THE  NATIONAL  GOVERNMENT 


PART  I 


jointly.  Thus,  in  1803,  President  Jefferson  negotiated  and 
completed  the  purchase  of  Louisiana,  the  whole  vast  posses¬ 
sions  of  France  beyond  the  Mississippi.  He  believed  himself 
to  be  exceeding  any  powers  which  the  Constitution  conferred ; 
and  desired  to  have  an  amendment  to  it  passed,  in  order  to 
validate  his  act.  But  Congress  and  the  people  did  not  share 
his  scruples,  and  the  approval  of  the  legislature  was  deemed 
sufficient  ratification  for  a  step  of  transcendent  importance, 
which  no  provision  of  the  Constitution  bore  upon.  In  1807 
and  in  1808  Congress  laid,  by  two  statutes,  an  embargo  on  all 
shipping  in  United  States  ports,  thereby  practically  destroying 
the  lucrative  carrying  trade  of  the  Hew  England  States.  Some 
of  these  States  declared  the  Act  unconstitutional,  arguing  that 
a  power  to  regulate  commerce  was  not  a  power  to  annihilate  it, 
and  their  courts  held  it  to  be  void.  Congress,  however,  per¬ 
sisted  for  a  year,  and  the  Act,  on  which  the  Supreme  Court 
never  formally  pronounced,  has  been  generally  deemed  within 
the  Constitution,  though  Justice  Story  (who  had  warmly  op¬ 
posed  it  when  he  sat  in  Congress)  remarks  that  it  went  to  the 
extreme  verge. 

More  startling,  and  more  far-reaching  in  their  consequences, 
were  the  assumptions  of  Federal  authority  made  during  the 
War  of  Secession  by  the  executive,  and  confirmed,  some  ex¬ 
pressly,  some  tacitly,  by  Congress  and  the  people.  It  was  only 
a  few  of  these  that  came  before  the  courts,  and  the  courts, 
in  some  instances,  disapproved  them.  But  the  executive  con¬ 
tinued  to  exert  this  extraordinary  authority.  Appeals  made 
to  the  letter  of  the  Constitution  by  the  minority  were  dis¬ 
credited  by  the  fact  that  they  were  made  by  persons  sympathiz¬ 
ing  with  the  Secessionists  who  were  seeking  to  destroy  it.  So 
many  extreme  things  were  done  under  the  pressure  of  neces¬ 
sity  that  something  less  than  these  extreme  things  came  to  be 
accepted  as  a  reasonable  and  moderate  compromise.1 

We  now  come  to  the  third  question :  How  is  the  interpreting 
authority  restrained  ?  If  the  American  Constitution  is  capable 
of  being  so  developed  by  this  expansive  interpretation,  what 

1  Such  as  the  suspension  of  the  writ  of  habeas  corpus,  the  emancipation  of 
the  slaves  of  persons  aiding  in  the  rebellion,  the  suspension  of  the  statute  of 
limitations,  the  practical  extinction  of  State  hanks  by  increased  taxation  laid 
on  them  under  the  general  taxing  power. 


chap,  xxxi  INTERPRETATION  OF  THE  CONSTITUTION 


267 


security  do  its  written  terms  offer  to  the  people  and  to  the 
States  ?  What  becomes  of  the  special  value  claimed  for  rigid 
constitutions,  that  they  preserve  the  frame  of  government 
unimpaired  in  its  essential  merits,  that  they  restrain  the 
excesses  of  a  transient  majority,  and  (in  federations)  the 
aggressions  of  a  central  authority  ? 

The  answer  is  two-fold.  In  the  first  place,  the  interpreting 
authority  is,  in  questions  not  distinctly  political,  different  from 
the  legislature  and  from  the  executive,  amenable  to  neither, 
and  composed'  of  lawyers  imbued  with  professional  habits. 
There  is  therefore  a  probability  that  it  will  disagree  with  either 
of  them  when  they  attempt  to  transgress  the  Constitution,  and 
will  decline  to  stretch  the  law  so  as  to  sanction  encroachments 
those  authorities  may  have  attempted.  In  point  of  fact,  there 
have  been  few  cases,  and  those  chiefly  cases  of  urgency  dur¬ 
ing  the  war,  in  which  the  judiciary  has  been  even  accused  of 
lending  itself  to  the  designs  of  the  other  organs  of  government. 
The  period  when  extensive  interpretation  was  most  active 
(1800-35)  was  also  the  period  when  the  party  opposed  to  a 
strong  central  government  commanded  Congress  and  the  exec¬ 
utive,  and  so  far  from  approving  the  course  the  court  took, 
the  dominant  party  then  often  complained  of  it. 

In  the  second  place,  there  stands  above  and  behind  the  legis¬ 
lature,  the  executive,  and  the  judiciary,  another  power,  that  of 
public  opinion.  The  President,  Congress,  and  the  courts  are 
all,  the  two  former  directly,  the  latter  practically,  amenable  to 
the  people,  and  anxious  to  be  in  harmony  with  the  general 
current  of  its  sentiment.  If  the  people  approve  the  way  in 
which  these  authorities  are  interpreting  and  using  the  Consti¬ 
tution,  they  go  on ;  if  the  people  disapprove,  they  pause,  or  at 
least  slacken  their  pace.  Generally  the  people  have  approved 
of  such  action  by  the  President  or  Congress  as  has  seemed 
justified  by  the  needs  of  the  time,  even  though  it  may  have 
gone  beyond  the  letter  of  the  Constitution :  generally  they 
have  approved  the  conduct  of  the  courts  whose  legal  interpre¬ 
tation  has  upheld  such  legislative  or  executive  action.  Public 
opinion  sanctioned  the  purchase  of  Louisiana,  and  the  still 
bolder  action  of  the  executive  in  the  Secession  War.  It 
approved  the  Missouri  compromise  of  1820,  which  the  Supreme 
Court  thirty-seven  years  afterwards  declared  to  have  been  in 


268 


THE  NATIONAL  GOVERNMENT 


PART  I 


excess  of  the  powers  of  Congress.  But  it  disapproved  the 
Alien  and  Sedition  laws  of  1798,  and  although  these  statutes 
were  never  pronounced  unconstitutional  by  the  courts,  this 
popular  censure  has  prevented  any  similar  legislation  since 
that  time.1  The  people  have,  of  course,  much  less  exact 
notions  of  the  Constitution  than  the  legal  profession  or  the 
courts.  But  while  they  generally  desire  to  see  the  powers  of 
the  government  so  far  expanded  as  to  enable  it  to  meet  the 
exigencies  of  the  moment,  they  are  sufficiently  attached  to  its 
general  doctrines,  they  sufficiently  prize  the  protection  it  affords 
them  against  their  own  impulses,  to  censure  any  interpretation 
which  palpably  departs  from  the  old  lines.  And  their  censure 
is,  of  course,  still  more  severe  if  the  court  seems  to  be  acting 
at  the  bidding  of  a  party. 

A  singular  result  of  the  importance  of  constitutional  inter¬ 
pretation  in  the  American  government  may  be  here  referred 
to.  It  is  this,  that  the  United  States  legislature  has  been 
very  largely  occupied  in  purely  legal  discussions.  When  it  is 
proposed  to  legislate  on  a  subject  which  has  been  heretofore 
little  dealt  with,  the  opponents  of  a  measure  have  two  lines  of 
defence.  They  may,  as  Englishmen  would  in  a  like  case,  argue 
that  the  measure  is  inexpedient.  But  they  may  also,  which 
Englishmen  cannot,  argue  that  it  is  unconstitutional,  i.e.  ille¬ 
gal,  because  transcending  the  powers  of  Congress.  This  is 
a  question  fit  to  be  raised  in  Congress,  not  only  as  regards 
matters  with  which,  as  being  purely  political,  the  courts  of  law 
will  refuse  to  interfere,  but  as  regards  all  other  matters  also, 
because  since  a  decision  on  the  constitutionality  of  a  statute 
can  never  be  obtained  from  the  judges  by  anticipation,  the 
legislature  ought  to  consider  whether  they  are  acting  within 
their  competence.  And  it  is  a  question  on  which  a  stronger 
case  can  often  be  made,  and  made  with  less  exertion,  than  on 
the  issue  whether  the  measure  be  substantially  expedient. 
Hence  it  is  usually  put  in  the  fore-front  of  the  battle,  and 
argued  with  great  vigour  and  acumen  by  leaders  who  are 
probably  more  ingenious  as  lawyers  than  they  are  far-sighted 
as  statesmen. 

A  further  consequence  of  this  habit  is  pointed  out  by  one  of 

1  So  it  disapproved  strongly,  in  the  Northern  States,  of  the  judgments 
delivered  by  the  majority  of  the  Supreme  Court  in  the  Dred  Scott  case. 


chap,  xxxi  INTERPRETATION  OF  THE  CONSTITUTION 


269 


the  most  thoughtful  among  American  constitutional  writers. 
Legal  issues  are  apt  to  dwarf  and  obscure  the  more  substan¬ 
tially  important  issues  of  principle  and  policy,  distracting 
from  these  latter  the  attention  of  the  nation  as  well  as  the 
skill  of  congressional  debaters. 

The  interpretation  of  the  Constitution  has  at  times  become 
so  momentous  as  to  furnish  a  basis  for  the  formation  of  politi¬ 
cal  parties;  and  the  existence  of  parties  divided  upon  such 
questions  has  of  course  stimulated  the  interest  with  which 
points  of  legal  interpretation  have  been  watched  and  can¬ 
vassed.  Soon  after  the  formation  of  the  National  government, 
in  1789,  two  parties  grew  up,  one  advocating  a  strong  central 
authority,  the  other  championing  the  rights  of  the  States.  Of 
these  parties  the  former  naturally  came  to  insist  on  a  liberal, 
an  expansive,  perhaps  a  lax  construction  of  the  words  of  the 
Constitution,  because  the  more  wide  is  the  meaning  placed 
upon  its  grant  of  powers,  so  much  the  wider  are  those  powers 
themselves.  The  latter  party,  on  the  other  hand,  was  acting 
in  protection  both  of  the  States  and  of  the  individual  citizen 
against  the  central  government,  when  it  limited  by  a  strict 
and  narrow  interpretation  of  the  fundamental  instrument  the 
powers  which  that  instrument  conveyed.  The  distinction  which 
began  in  those  early  days  has  never  since  vanished.  There  has 
always  been  a  party  professing  itself  disposed  to  favour  the 
central  government,  and  therefore  a  party  of  broad  construc¬ 
tion.  There  has  always  been  a  party  claiming  that  it  aimed  at 
protecting  the  rights  of  the  States,  and  therefore  a  party  of 
strict  construction.  Some  writers  have  gone  so  far  as  to  deem 
these  different  views  of  interpretation  to  be  the  foundation  of 
all  the  political  parties  that  have  divided  America.  This  view, 
however,  inverts  the  facts.  It  is  not  because  men  have  differed 
in  their  reading  of  the  Constitution  that  they  have  advocated 
or  opposed  an  extension  of  Federal  powers ;  it  is  their  attitude 
on  this  substantial  issue  that  has  determined  their  attitude  on 
the  verbal  one.  Moreover,  the  two  great  parties  have  several 
times  changed  sides  on  the  very  question  of  interpretation. 
The  purchase  of  Louisiana  and  the  Embargo  Acts  were  the 
work  of  the  strict  constructionists,  while  it  was  the  loose 
constructionist  party  which  protested  against  the  latter  meas¬ 
ure,  and  which,  at  the  Hartford  Convention  of  1814,  advanced 


270 


THE  NATIONAL  GOVERNMENT 


PART  I 


doctrines  of  State  rights  almost  amounting  to  those  subse¬ 
quently  asserted  by  South  Carolina  in  1832  and  by  the  Seces¬ 
sionists  of  1861.  Parties  in  America,  as  in  most  countries, 
have  followed  their  temporary  interest;  and  if  that  interest 
happened  to  differ  from  some  traditional  party  doctiine,  they 
have  explained  the  latter  away.  Whenever  there  has  been  a 
serious  party  conflict,  it  has  been  in  reality  a  conflict  over 
some  living  and  practical  issue,  and  only  in  form  a  debate  upon 
canons  of  legal  interpretation.  What  is  remarkable,  though 
natural  enough  in  a  country  governed  by  a  written  instrument, 
is  that  every  controversy  has  got  involved  with  questions  of 
constitutional  construction. 

The  results  were  both  good  and  evil.  They  were  good  in  so 
far  as  they  made  both  parties  profess  themselves  defenders  of 
the  Constitution,  zealous  only  that  it  should  be  interpreted 
aright ;  as  they  familiarized  the  people  with  its  provisions, 
and  made  them  vigilant  critics  of  every  legislative  or  execu¬ 
tive  act  which  could  affect  its  working.  They  were  evil  in 
distracting  public  attention  from  real  problems  to  the  legal 
aspect  of  those  problems,  and  in  cultivating  a  habit  of  casu¬ 
istry  which  threatened  the  integrity  of  the  Constitution  itself. 


CHAPTER  XXXII 


THE  DEVELOPMENT  OF  THE  CONSTITUTION  BY  USAGE 

There  is  yet  another  way  in  which  the  Constitution  has 
been  developed.  This  is  by  laying  down  rules  on  matters 
which  are  within  its  general  scope,  but  have  not  been  dealt 
with  by  its  words,  by  the  creation  of  machinery  which  it  has 
not  provided  for  the  attainment  of  objects  it  contemplates, 
or,  to  vary  the  metaphor,  by  ploughing  and  planting  ground 
which,  though  included  within  the  boundaries  of  the  Consti¬ 
tution,  was  left  waste  by  those  who  drew  up  the  original 
instrument. 

Although  the  Constitution  is  curiously  minute  upon  some 
comparatively  small  points,  such  as  the  qualifications  of  mem¬ 
bers  of  Congress  and  the  official  record  of  their  votes,  it  passes 
over  in  silence  many  branches  of  political  action,  many  details 
essential  to  every  government.  Some  may  have  been  for¬ 
gotten,  but  some  were  purposely  omitted,  because  the  Con¬ 
vention  could  not  agree  upon  them,  or  because  they  would 
have  provoked  opposition  in  the  ratifying  conventions,  or 
because  they  were  thought  unsuited  to  a  document  which  it 
was  desirable  to  draft  concisely  and  to  preserve  as  far  as  pos¬ 
sible  unaltered.  This  was  wise  and  indeed  necessary,  but  it 
threw  a  great  responsibility  upon  those  who  had  to  work  the 
government  which  the  Constitution  created.  They  found 
nothing  within  the  four  corners  of  the  instrument  to  guide 
them  on  points  whose  gravity  was  perceived  as  soon  as  they 
had  to  be  settled  in  practice.  Many  of  such  points  could  not 
be  dealt  with  by  interpretation  or  construction,  however  liber¬ 
ally  extensive  it  might  be,  because  there  was  nothing  in  the 
words  of  the  Constitution  from  which  such  construction  could 
start,  and  because  they  were  in  some  instances  matters  which, 
though  important,  could  not  be  based  upon  principle,  but  must 
be  settled  by  an  arbitrary  determination. 


271 


272 


THE  NATIONAL  GOVERNMENT 


PART  1 


Their  settlement,  which  began  with  the  first  Congress,  has 
been  effected  in  two  ways,  by  congressional  legislation  and  by 
usage. 

Congress  was  empowered  by  the  Constitution  to  pass 
statutes  on  certain  prescribed  topics.  On  many  other  topics 
not  specially  named,  but  within  its  general  powers,  statutes 
were  evidently  needed.  For  instance,  the  whole  subject  of 
Federal  taxation,  direct  and  indirect,  the  establishment  of 
Federal  courts,  inferior  to  the  Supreme  Court,  and  the 
assignment  of  particular  kinds  and  degrees  of  jurisdiction  to 
each  class  of  courts,  the  organization  of  the  civil,  military, 
and  naval  services  of  the  country,  the  administration  of  Indian 
affairs  and  of  the  Territories,  the  rules  to  be  observed  in  the 
elections  of  Presidents  and  senators,  these  and  many  other 
matters  of  high  import  are  regulated  by  statutes,  statutes 
which  Congress  can  of  course  change,  but  which,  in  their 
main  features,  have  not  been  greatly  changed  since  their  first 
enactment. 

Next  as  to  usage.  Custom,  which  is  a  law-producing  agency 
in  every  department,  is  specially  busy  in  matters  which  per¬ 
tain  to  the  practical  conduct  of  government.  Understandings 
and  conventions  are  in  modern  practice  no  less  essential  to 
the  smooth  working  of  the  English  Constitution,  than  are  the 
principles  enunciated  in  the  Bill  of  Bights.  Now,  under¬ 
standings  are  merely  long-established  usages,  sanctioned  by 
no  statute,  often  too  vague  to  admit  of  precise  statement,1  yet 
in  some  instances  deemed  so  binding  that  a  breach  of  them 
would  damage  the  character  of  a  statesman  or  a  ministry  just 
as  much  as  the  transgression  of  a  statute.  In  the  United  States 
there  are  fewer  such  understandings  than  in  England,  because 
under  a  constitution  drawn  out  in  one  fundamental  document 
everybody  is  more  apt  to  stand  upon  his  strict  legal  rights, 
and  the  spirit  of  institutions  departs  less  widely  from  their 
formal  character.  Nevertheless  some  of  those  features  of 

» 

i  For  instance,  it  is  impossible  to  state  precisely  the  practical  (as  distin¬ 
guished  from  the  legal)  rights  of  the  House  of  Lords  to  reject  hills  passed  by 
the  House  of  Commons,  or  the  duty  of  the  Crown  when  a  Cabinet  makes  some 
very  unusual  request ;  although  it  is  admitted  that  as  a  rule  the  Lords  ought 
to  yield  to  the  Commons  and  the  Crown  to  be  guided  by  the  advice  of  its 
ministers. 


chap,  xxxii  DEVELOPMENT  OF  THE  CONSTITUTION 


273 


American  government,  to  which  its  character  is  chiefly  due, 
and  which  recur  most  frequently  in  its  daily  working,  rest 
neither  upon  the  Constitution  nor  upon  any  statute,  but  upon 
usage  alone.  Here  are  some  instances:  — 

The  presidental  electors  have  by  usage,  and  by  usage  only, 
lost  the  right  the  Constitution  gave  them  of  exercising  their 
discretion  in  the  choice  of  a  chief  magistrate. 

The  President  is  not  re-elected  more  than  once,  though  the 
Constitution  places  no  restriction  whatever  on  re-eligibility. 

The  President  uses  his  veto  more  freely  than  he  did  at  first, 
and  for  a  wider  range  of  purpose. 

The  Senate  now  never  exercises  its  undoubted  power  of 
refusing  to  confirm  the  appointments  made  by  the  President 
to  Cabinet  offices. 

The  President  is  permitted  to  remove,  without  asking  the 
consent  of  the  Senate,  officials  to  whose  appointment  the  con¬ 
sent  of  the  Senate  is  necessary.  This  was  for  a  time  regulated 
by  statute,  but  the  statute  having  been  repealed  the  old  usage 
has  revived.  (See  Chapter  V.) 

Both  the  House  and  the  Senate  conduct  their  legislation  by 
means  of  standing  committees.  This  vital  peculiarity  of  the 
American  system  of  government  has  no  firmer  basis  than  the 
standing  orders  of  each  House,  which  can  be  repealed  at  any 
moment,  but  have  been  maintained  for  many  years. 

The  Speaker  of  the  House  is  by  a  similar  practice  entrusted 
with  the  profoundly  important  power  of  nominating  all  the 
House  committees. 

The  chairmen  of  the  chief  committees  of  both  Houses,  which 
control  the  great  departments  of  State  (e.g.  foreign  affairs, 
navy,  justice,  finance),  have  practically  become  an  additional 
set  of  ministers  for  those  departments. 

The  custom  of  going  into  caucus,  by  which  the  parties  in 
each  of  the  two  Houses  of  Congress  determine  their  action, 
and  the  obligation  on  individual  members  to  obey  the  decision 
of  the  caucus  meeting,  are  mere  habits  or  understandings, 
without  legal  sanction.  So  is  the  right  claimed  by  the  sena¬ 
tors  from  a  State  to  control  the  Federal  patronage  of  that 
State.  So  is  the  usage  that  appropriation  bills  shall  be  pre¬ 
sented  to  the  House. 

The  rule  that  a  member  of  Congress  must  be  chosen  from 


274 


THE  NATIONAL  GOVERNMENT 


PART  I 


the  district,  as  well  as  from  the  State,  in  which  he  resides, 
rests  on  no  Federal  enactment;  indeed,  neither  Congress  nor 
any  State  legislature  would  be  entitled  thus  to  narrow  the 
liberty  of  choice  which  the  words  of  the  Constitution  imply. 

Jackson  introduced,  and  succeeding  Presidents  continued, 
the  practice  of  dismissing  Federal  officials  belonging  to  the 
opposite  party,  and  appointing  none  but  adherents  of  their 
own  party  to  the  vacant  places.  This  is  the  so-called  Spoils 
System,  which,  having  been  applied  also  to  State  and  mu¬ 
nicipal  offices,  has  been  made  the  corner-stone  of  “  practical 
politics  ”  in  America.  The  Constitution  is  nowise  answerable 
for  it  and  legislation  only  partially. 

Neither  in  English  law  nor  in  American  is  there  anything 
regarding  the  re-eligibility  of  a  member  of  the  popular  cham¬ 
ber;  nor  can  it  be  said  that  usage  has  established  in  either 
country  any  broad  general  rule  on  the  subject.  But  whereas 
the  English  tendency  has  been  to  re-elect  a  member  unless 
there  is  some  positive  reason  for  getting  rid  of  him,  in  many 
parts  of  America  men  are  disposed  the  other  way,  and  refuse 
to  re-elect  him  just  because  he  has  had  his  turn  already.  Any 
one  can  understand  what  a  difference  this  makes  in  the  char- 
racter  of  the  chamber. 

We  see,  then,  that  several  salient  features  of  the  present 
American  government,  such  as  the  popular  election  of  the 
President,  the  influence  of  senators  and  congressmen  over 
patronage,  the  immense  power  of  the  Speaker,  the  Spoils 
System,  are  due  to  usages  which  have  sprung  up  round  the 
Constitution  and  profoundly  affected  its  working,  but  which 
are  not  parts  of  the  Constitution,  nor  necessarily  attributable 
to  any  specific  provision  which  it  contains.  The  most  remark¬ 
able  instance  of  all,  the  choice  of  presidential  candidates  by 
the  great  parties  assembled  in  their  National  Conventions,  will 
be  fully  considered  in  a  later  chapter. 

One  of  the  changes  which  the  last  seventy  years  have 
brought  about  is  so  remarkable  as  to  deserve  special  mention. 
The  Constitution  contains  no  provisions  regarding  the  electoral 
franchise  in  congressional  elections  save  the  three  following:  — 

That  the  franchise  shall  in  every  State  be  the  same  as  that 
by  which  the  members  of  the  u  most  numerous  branch  of  the 
State  legislature  ”  are  chosen  (Art.  i.  §  2). 


chap,  xxxii  DEVELOPMENT  OF  THE  CONSTITUTION 


275 


That  when  any  male  citizens  over  twenty-one  years  of  age 
are  excluded  by  any  State  from  the  franchise  (except  for 
crime)  the  basis  of  representation  in  Congress  of  that  State 
shall  be  proportionately  reduced  (Am.  xiv.,  1868). 

That  the  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  on  account  of  race,  colour,  or 
previous  condition  of  servitude  ”  (Am.  xv.,  1870). 

Subject  to  these  conditions  every  State  may  regulate  the 
electoral  franchise  as  it  pleases. 

In  the  first  days  of  the  Constitution  the  suffrage  was  in 
nearly  all  States  limited  by  various  conditions  (e.p.  property 
qualification,  length  of  residence,  etc.)  which  excluded,  or 
might  have  excluded,  though  in  some  States  the  proportion  of 
very  poor  people  was  small,  a  considerable  number  of  the  free 
inhabitants.  At  present  the  suffrage  is  in  every  State  prac¬ 
tically  universal.  It  had  become  so  in  the  free  States 1  even 
before  the  war.  Here  is  an  advance  towards  pure  democracy 
effected  without  the  action  of  the  National  legislature,  but 
solely  by  the  legislation  of  the  several  States,  a  legislation 
which,  as  it  may  be  changed  at  any  moment,  is,  so  far  as  the 
National  government  is  concerned,  mere  custom.  And  of  this 
great  step,  modifying  profoundly  the  colour  and  character  of 
the  government,  there  is  no  trace  in  the  words  of  the  Consti¬ 
tution  other  than  the  provisions  of  the  fourteenth  and  fifteenth 
amendments  introduced  for  the  benefit  of  the  liberated  Negroes. 

Sometimes  the  courts  feel  bound  to  declare  some  statute, 
or  executive  act  done  in  pursuance  of  usage,  contrary  to  the 
Constitution.  What  happens?  In  theory  the  judicial  deter¬ 
mination  is  conclusive,  and  ought  to  check  any  further  progress 
in  the  path  which  has  been  pronounced  unconstitutional.  But 
whether  this  result  follows  will  in  practice  depend  on  the  cir¬ 
cumstances  of  the  moment.  If  the  case  is  not  urgent,  if  there 
is  no  strong  popular  impulse  behind  Congress  or  the  President, 
no  paramount  need  for  the  usage  which  had  sprung  up  and  is 
now  disapproved,  the  decision  of  the  courts  will  be  acquiesced 
in;  and  whatever  tendency  towards  change  exists  will  seek 
some  other  channel  where  no  constitutional  obstacle  bars  its 
course.  But  if  the  needs  of  the  time  be  pressing,  courts  and 


1  Save  that  in  many  of  them  persons  of  colour  were  placed  at  a  disadvantage. 


276 


THE  NATIONAL  GOVERNMENT 


PART  I 


Constitution  may  have  to  give  way.  Salus  reipublicae  lex 
supremo, .  Above  that  supreme  written  law  stands  the  safety 
of  the  commonwealth,  which  will  he  secured,  if  possible  in 
conformity  with  the  Constitution;  but  if  that  be  not  possible, 
then  by  evading,  or  even  by  overriding  the  Constitution.1 
This  is  what  happened  in  the  Civil  War,  when  men  said  that 
they  would  break  the  Constitution  in  order  to  preserve  it. 

Attempts  to  disobey  the  Constitution  have  been  lare,  oecause 
the  fear  of  clashing  with  it  has  arrested  many  mischievous 
proposals  in  their  earlier  stages,  while  the  influence  of  public 
opinion  has  averted  possible  collisions  by  leading  the  courts 
to  lend  their  ultimate  sanction  to  measures  or  usages  which, 
had  they  come  under  view  at  their  first  appearance,  might 
have  been  pronounced  unconstitutional.2  That  collisions  have 
been  rare  is  good  evidence  of  the  political  wisdom  of  American 

statesmen  and  lawyers.  > 

The  solemn  determination  of  a  people  enacting  a  fundamental 
law  by  which  they  and  their  descendants  shall  be  governed 
cannot  prevent  that  law,  however  great  the  reverence  they 
continue  to  profess  for  it,  from  being  worn  away  in  one  part, 
enlarged  in  another,  modified  in  a  third,  by  the  ceaseless  action 
of  influences  playing  upon  the  individuals  who  compose  the 
people.  Thus  the  American  Constitution  has  necessarily 
changed  as  the  nation  has  changed,  has  changed  in  the  spirit 
with  which  men  regard  it,  and  therefore  in  its  own  spirit.  To 
use  the  words  of  the  eminent  constitutional  lawyer  whom  I 
have  more  than  once  quoted:  “We  may  think,”  says  Judge 
Cooley,  “  that  we  have  the  Constitution  all  before  us ;  but  for 


1  in  a  remarkable  letter  written  to  Mr.  Hodges  (4th  April  1864),  President 

Lincoln  said :  “  My  oath  to  preserve  the  Constitution  imposed  on  me  the  duty 
of  preserving  by  every  indispensable  means  that  government,  that  nation,  o. 
which  the  Constitution  was  the  organic  law.  Was  it  possible  to  lose  the  nation 
and  yet  preserve  the  Constitution  ?  By  general  law  life  and  limb  must  be 
protected,  yet  often  a  limb  must  be  amputated  to  save  a  life,  but  a  life  is  neve 
wisely  given  to  save  a  limb.  I  felt  that  measures,  otherwise  unconstitutional, 
might  become  lawful  by  becoming  indispensable  to  the  preservation  of  the 
Constitution  through  the  preservation  of  the  nation.  Right  or  wrong  I  - 
sumed  this  ground,  and  now  avow  it.  I  could  not  feel  that  to  the  best  o  y 
ability  I  had  even  tried  to  preserve  the  Constitution,  if,  to  save  slavery,  oi  c  y 
minor  matter,  I  should  permit  the  wreck  of  government,  country,  and  Consti¬ 
tution  altogether.”  , .  .  .  ,  OTWi 

2  Such  as  the  expenditure  of  vast  sums  on  “  internal  improvements  and 

the  assumption  of  wide  powers  over  internal  communications. 


chap,  xxxii  DEVELOPMENT  OF  THE  CONSTITUTION 


277 


practical  purposes  the  Constitution  is  that  which  the  govern¬ 
ment,  in  its  several  departments,  and  the  people  in  the  per¬ 
formance  of  their  duties  as  citizens,  recognize  and  respect  as 
such  5  and  nothing  else  is.  .  .  .  Cervantes  says  :  Every  one  is 
the  son  of  his  own  works.  This  is  more  emphatically  true  of 
an  instrument  of  government  than  it  can  possibly  be  of  a  nat¬ 
ural  peison.  TV  hat  it  takes  to  itself,  though  at  first  unwar¬ 
rantable,  helps  to  make  it  over  into  a  new  instrument  of 
government,  and  it  represents  at  last  the  acts  done  under  it.,J 


CHAPTER  XXXIII 

THE  RESULTS  OF  CONSTITUTIONAL  DEVELOPMENT 

We  have  seen  that  the  American  Constitution  has  changed, 
is  changing,  and  by  the  law  of  its  existence  must  continue  to 
change,  in  its  substance  and  practical  working,  even  when  its 
words  remain  the  same.  “  Time  and  habit,”  said  W  ashington, 
“  are  at  least  as  necessary  to  fix  the  true  character  of  govern¬ 
ments  as  of  other  human  institutions  :  ”  1  and  while  habit  fixes 

some  things,  time  remoulds  others. 

It  remains  to  ask  what  has  been  the  general  result  of  the 
changes  it  has  suffered,  and  what  light  an  examination  of  its 
history,  in  this  respect,  throws  upon  the  probable  future  of  the 
instrument  and  on  the  worth  of  rigid  or  supreme  constitutions 

in  general.  . 

The  Constitution  was  avowedly  created  as  an  instrument  oi 

checks  and  balances.  Each  branch  of  the  National  government 
was  to  restrain  the  others,  and  maintain  the  equipoise  of  the 
whole.  The  legislature  was  to  balance  the  executive,  and  the 
judiciary  both.  The  two  Houses  of  the  legislature  were  to 
balance  one  another.  The  National  government,  taking  all  its 
branches  together,  was  balanced  against  the  State  governments. 
As  this  equilibrium  was  placed  under  the  protection  of  a  docu¬ 
ment,  unchangeable  save  by  the  people  themselves,  no  one  of 
the  branches  of  the  National  government  has  been  able  to 
absorb  or  override  the  others,  as  the  House  of  Commons  and 
the  Cabinet,  itself  a  child  of  the  House  of  Commons,  have  m 
England  overridden  and  subjected  the  Crown  and  the  House 
of  Lords.  Each  branch  maintains  its  independence,  and  can, 
within  certain  limits,  defy  the  others. 

But  there  is  among  political  bodies  and  offices  (i.e.  the  per¬ 
sons  who  from  time  to  time  fill  the  same  office)  of  necessity  a 

i  Farewell  Address,  17th  September  1796. 

278 


CHAP.  XXXIII 


CONSTITUTIONAL  DEVELOPMENT 


279 


constant  strife,  a  struggle  for  existence  similar  to  that  which 
Mr.  Darwin  has  shown  to  exist  among  plants  and  animals- 
and  as  in  the  case  of  plants  and  animals  so  also  in  the  politi¬ 
cal  sphere  this  struggle  stimulates  each  body  or  office  to  exert 
its  utmost  force  for  its  own  preservation,  and  to  develop  its 
aptitudes  in  any  direction  wherein  development  is  possible. 
Each  branch  of  the  American  government  has  striven  to  ex¬ 
tend  its  range  and  its  powers ;  each  has  advanced  in  certain 
directions,  but  in  others  has  been  restrained  by  the  equal  or 
stronger  pressure  of  other  branches.  I  shall  attempt  to  state 
the  chief  differences  perceptible  between  the  ideas  which  men 
entertained  regarding  the  various  bodies  and  offices  of  the 
government  when  they  first  entered  life,  and  the  aspect  they 
now  wear  to  the  nation. 

The  President  has  developed  a  capacity  for  becoming  in 
moments  of  National  peril,  something  like  a  Roman  dictator. 
He  is  in  quiet  times  no  stronger  than  he  was  at  first,  possibly 
weaker.  Congress  has  in  some  respects  encroached  on  him 
yet  his  office  has  shown  that  it  may,  in  the  hands  of  a  trusted 

leader  and  at  the  call  of  a  sudden  necessity,  rise  to  a  tremen¬ 
dous  height. 

The  ministers  of  the  President  have  not  become  more  im¬ 
portant  either  singly  or  collectively  as  a  Cabinet.  Cut  off  from 
the  legislature  on  one  side,  and  from  the  people  on  the  other, 
they  have  been  a  mere  appendage  to  the  President. 

The  Senate  has  come  to  press  heavily  on  the  executive,  and 
at  the  same  time  has.  developed  legislative  functions  which 
though  contemplated  in  the  Constitution,  were  comparatively 
rudimentary  in  the  older  days.  It  has,  in  the  judgment  of 
merican  publicists,  grown  relatively  stronger  than  it  then  was. 
The .  Vice-President  of  the  United  States  has  become  even 

more  insignificant  than  the  Constitution  seemed  to  make 
him. 

On  the  other  hand,  the  Speaker  of  the  House  of  Representa¬ 
tives,  whom  the  Constitution  mentions  only  once  and  on  whom 
it  bestows  no  power,  has  now  secured  one  of  the  leading  parts 

m  the  piece,  and  can  affect  the  course  of  legislation  more  than 
any  other  single  person. 

An  oligarchy  of  chairmen  of  the  leading  committees  has 
sprung  up  in  the  House  of  Representatives  as  a  consequence 


280 


THE  NATIONAL  GOVERNMENT 


PART  i 


of  the  increasing  demands  on  its  time  and  of  the  woiking  of 
the  committee  system. 

The  judiciary  was  deemed  to  be  making  large  strides  during 
the  first  forty  years,  because  it  established  its  claim  to  powers 
which,  though  doubtless  really  granted,  had.  been  but  faintly 
apprehended  in  1789.  After  1830  the  development  of  those 
powers  advanced  more  slowly.  But  the  position  which  the 
Supreme  Court  has  taken  in  the  scheme  of  government,  if  it  be 
not  greater  than  the  framers  of  the  Constitution  would  have 
wished,  is  yet  greater  than  they  foresaw. 

Although  some  of  these  changes  are  considerable,  they  are 
far  smaller  than  those  which  England  has  seen  pass  over  her 
government  since  1789.  So  far,  therefore,  the  rigid  Constitu¬ 
tion  has  maintained  a  sort  of  equilibrium  between  the  various 
powers,  whereas  that  which  was  then  supposed  to  exist  in 
England  between  the  King,  the  peers,  the  House  of  Commons, 
and  the  people  (i.e.  the  electors)  has  vanished  irrecoverably. 

In  the  other  struggle  that  has  gone  on  in  America,  that  be- 
tween  the  National  government  and  the  States,  the  results 
have  been  still  more  considerable,  though  the  process  of  change 
has  sometimes  been  interrupted.  During  the  first  few  decades 
after  1789  the  States,  in  spite  of  a  steady  and  often  angry  re¬ 
sistance,  sometimes  backed  by  threats  of  secession,  found  them¬ 
selves  more  and  more  entangled  in  the  network  of  Federal 
powers  which  sometimes  Congress,  sometimes  the  President, 
sometimes  the  judiciary  as  the  expounder  of  the  Constitution, 
flung  over  them.  Provisions  of  the  Constitution  whose  bear¬ 
ing  had  been  inadequately  realized  in  the  first  instance  were 
put  in  force  against  a  State,  and  when  once  put  in  force  became 
precedents  for  the  future.  It  is  instructive  to  observe  that 
this  was  done  by  both  of  the  great  National  parties,  by 
those  who  defended  State  rights  and  preached  State  sover¬ 
eignty  as  well  as  by  the  advocates  of  a  strong  central  govern¬ 
ment.  Eor  the  former,  when  they  saw  the  opportunity  of 
effecting,  by  means  of  the  central  legislative  or  executive 
power,  an  object  of  immediate  party  importance,  did  not  hesi¬ 
tate  to  put  in  force  that  central  power,  forgetful  or  heedless  of 

the  example  they  were  setting.  # 

It  is  for  this  reason  that  the  process  by  which  the  National 
government  has  grown  may  be  called  a  natural  one.  A  politi- 


CHAP.  XXXIII 


CONSTITUTIONAL  DEVELOPMENT 


281 


cal  force  has,  like  a  heated  gas,  a  natural  tendency  to  expan¬ 
sion,  a  tendency  which  works  even  apart  from  the  knowledge 
and  intentions  of  those  through  whom  it  works.  In  the  process 
of  expansion  such  a  force  may  meet,  and  may  be  checked,  or 
driven  back  by  a  stronger  force. 

The  expansive  force  of  the  National  government  proved 
ultimately  stronger  than  the  force  of  the  States,  so  the  cen¬ 
tralizing  tendency  prevailed.  And  it  prevailed  not  so  much 
by  the  conscious  purpose  of  the  party  disposed  to  favour  it,  as 
through  the  inherent  elements  of  strength  which  it  possessed, 
and  the  favouring  conditions  amid  which  it  acted,  elements 
and  conditions  largely  irrespective  of  either  political  party,  and 
operative  under  the  supremacy  of  the  one  as  well  as  of  the 
other.  Now  and  then  the  centralizing  process  was  checked. 
Georgia  defied  the  Supreme  Court  in  1830-2,  and  was  not 
made  to  bend,  because  the  executive  sided  with  her.  South 
Carolina  defied  Congress  and  the  President  in  1832,  and  the 
issue  was  settled  by  a  compromise.  Acute  foreign  observers 
then  and  often  during  the  period  that  followed  predicted  the 
dissolution  of  the  Union.  For  some  years  before  the  outbreak 
of  the  Civil  War  the  tie  of  obedience  to  the  National  govern¬ 
ment  was  palpably  loosened  over  a  large  part  of  the  country. 
But  during  and  after  the  war  the  former  tendency  resumed  its 
action,  swifter  and  more  potent  than  before. 

A  critic  may  object  to  the  view  here  presented  by  remarking 
that  the  struggle  between  the  National  government  and  the 
States  has  not,  as  in  the  case  of  the  struggles  between  differ¬ 
ent  branches  of  the  National  government,  proceeded  merely  by 
the  natural  development  of  the  Constitution,  but  has  been 
accelerated  by  specific  changes  in  the  Constitution,  viz.  those 
made  by  the  three  latest  amendments. 

This  is  true.  But  the  dominance  of  the  centralizing  tenden¬ 
cies  is  not  wholly  or  even  mainly  due  to  those  amendments. 
It  had  begun  before  them.  It  would  have  come  about,  though 
less  completely,  without  them.  It  has  been  due  not  only  to 
these  amendments  but  also  — 

To  the  extensive  interpretation  by  the  judiciary  of  the 
powers  which  the  •  Constitution  vests  in  the  National 
government. 


282 


THE  NATIONAL  GOVERNMENT 


PART  I 


To  the  passing  by  Congress  of  statutes  on  topics  not  exclu¬ 
sively  reserved  to  the  States,  statutes  which  have  sen¬ 
sibly  narrowed  the  field  of  State  action. 

To  exertions  of  executive  power  which,  having  been  approved 
by  the  people,  and  not  condemned  by  the  courts,  have 
passed  into  precedents. 

These  have  been  the  modes  in  which  the  centralizing  ten¬ 
dency  has  shown  itself  and  prevailed.  What  have  been  the 
underlying  causes  ? 

They  belong  to  history.  They  are  partly  economical,  partly 
moral.  Steam  and  electricity  have  knit  the  various  parts  of 
the  country  closely  together,  have  made  each  State  and  group 
of  States  more  dependent  on  its  neighbours,  have  added  to  the 
matters  in  which  the  whole  country  benefits  by  joint  action 
and  uniform  legislation.  The  power  of  the  National  govern¬ 
ment  to  stimulate  or  depress  commerce  and  industries  by  tariff 
legislation  has  given  it  a  wide  control  over  the  material  pros¬ 
perity  of  part  of  the  Union,  till  “  the  people,  and  especially 
the  trading  and  manufacturing  classes,  came  to  look  more  and 
more  to  the  National  capital  for  what  enlists  their  interests, 
and  less  and  less  to  the  capital  of  their  own  State.  ...  It  is 
the  nation  and  not  the  State  that  is  present  to  the  imagination 
of  the  citizens  as  sovereign,  even  in  the  States  of  J efferson  and 
Calhoun.  .  .  .  The  Constitution  as  it  is,  and  the  Union  as  it 
was,  can  no  longer  be  the  party  watchword.  There  is  a  new 
Union,  with  new  grand  features,  but  with  new  engrafted 
evils.”  1  There  has  grown  up  a  pride  in  the  National  flag,  and 
in  the  National  government  as  representing  National  unity.  In 
the  North  there  is  gratitude  to  that  government  as  the  power 
that  saved  the  Union  in  the  Civil  War;  in  the  South  a  sense 
of  the  strength  which  Congress  and  the  President  then  exerted; 
in  both  a  recollection  of  the  immense  scope  which  the  war 
powers  took  and  might  take  again.  All  over  the  country  there 
is  a  great  army  of  Federal  office-holders  who  look  to  Washing¬ 
ton  as  the  centre  of  their  hopes  and  fears.  As  the  modes  in 
and  by  which  these  and  other  similar  causes  can  work  are 
evidently  not  exhausted,  it  is  clear  that  the  development  of 
the  Constitution  as  between  the  nation  and  the  States  has  not 


1  Cooley,  History  of  Michigan. 


CHAP.  XXXIII 


CONSTITUTIONAL  DEVELOPMENT 


288 


yet  stopped,  and  present  appearances  suggest  that  tlie  central¬ 
izing  tendency  will  continue  to  prevail. 

To  expect  any  form  of  words,  however  weightily  conceive  ] 
with  whatever  sanctions  enacted,  permanently  to  restrain  the 
passions  and  interests  of  men  is  to  expect  the  impossible 
yond  a  certain  point,  you  cannot  protect  the  people  against 
t  lemselves  any  more  than  you  can,  to  use  a  familiar  American 
expression,  lift  yourself  from  the  ground  by  your  own  boot¬ 
straps^  Laws  sanctioned  by  the  overwhelming  physical  power 
of  a  despot,  laws  sanctioned  by  supernatural  terrors  whose 
reality  no  one  doubted,  have  failed  to  restrain  those  passions 

ldvagnced  that  inyth“d  SUp,erStition'  Tlle  w“ld  is  not  so  much 

able  laws  w01  of  th  ***  ^  eVen  the  best  and  most 
able  laws,  will  of  themselves  command  obedience.  Constitu¬ 
tions  which  in  quiet  times  change  gradually,  peacefully  almost 
imperceptibly,  must  in  times  of  revolution  be  changed  more 
bodily,  some  provisions  being  sacrificed  for  the  sake  of  the 
lest,  as  mariners  throw  overboard  part  of  the  cargo  in  a  storm 
m  order  to  save  the  other  part  with  the  ship  herself.  To  cling 
to  the  letter  of  a  Constitution  when  the  welfare  of  the  country 
for  whose  sake  the  Constitution  exists  is  at  stake,  would  be  to 

Taving0  Pr6SerVe  Ue  at  the  C°St  °f  a11  that  makes  Hfe  worth 

renteS^l ^  C°nstitution  of  the  United  States  has 
rendered,  and  renders  now,  inestimable  services.  It  opposes 

obstacles  to  rash  and  hasty  change.  It  secures  time  for  deliber¬ 
ation.  It  forces  the  people  to  think  seriously  before  they  alter 
it  or  pardon  a  transgression  of  it.  It  makes  legislatures  and 
statesmen  slow  to  overpass  their  legal  powers,  slow  even  to 
propose  measures  which  the  Constitution  seems  to  disapprove 
It  tends  to  render  the  inevitable  process  of  modification  gradual 

ratherths  f  thHreSUlt  of.adraitted  and  growing  necessities 
rather  than  of  restless  impatience.  It  altogether  prevents  some 

changes  which  a  temporary  majority  may  clamour  for,  but 

which  will  have  ceased  to  be  demanded  before  the  barriers 

interposed  by  the  Constitution  have  been  overcome 

It  does  still  more  than  this.  It  forms  the  mind  and  temper  of 

the  people.  It  trains  them  to  habits  of  legality.  It  strengthens 

eir  conservative  instincts,  their  sense  of  the  value  of  stability 

and  permanence  m  political  arrangements.  It  makes  them  feel 


284' 


THE  NATIONAL  GOVERNMENT 


PART  I 


that' to  comprehend  their  supreme  instrument  of  government 
is  a  personal- fluty,  incumbent  on  each  one  of  them.  It  famil¬ 
iarizes  them  with,  it  attaches  them  by  ties  of  prule  and  rever¬ 
ence  to,  those  fundamental  truths  on  which  the  Constitution  is 

]OcLS0cl* 

These  are  enormous  services  to  render  to  any  free  countiy, 
but  above  all  to  one  which,  more  than  any.  other,  is  governed 
not  by  the  men  of  rank  or  wealth  or  special  wisdom,  but  by 
public  opinion,  that  is  to  say,  by  the  ideas  and  feelings  of  ie 
people  at  large.  In  no  country  were  swift  political  changes  so 
much  to  be  apprehended,  because  nowhere  has  material  growth 
been  so  rapid  and  immigration  so  enormous.  In  none  might 
the  political  character  of  the  people  have  seemed  more  likely 
to  be  bold  and  prone  to  innovation,  because  their  National 
existence  began  with  a  revolution,  which  even  now  lies  only  a 
century  behind.  That  none  has  ripened  into  a  more  prudently 
conservative  temper  may  be  largely  ascribed  to  the  influence 
of  the  famous  instrument  of  1789,  which,  enacted  by  and  for  a 
new  republic,  summed  up  so  much  of  what  was  best  m  the 
laws  and  customs  of  an  ancient  monarchy. 


PART  II 


THE  STATE  GOVERNMENTS 


CHAPTER  XXXIV 


NATURE  OF  THE  AMERICAN  STATE 

.  The :  American  State  is  a  peculiar  organism,  unlike  anything 

“  ™°doer„n  E"r°P®  or  in  «*>  ancient  world.  The  only  parallel 
is  to  be  found  in  the  cantons  of  modern  Switzerland. 

et  me  attempt  to  sketch  the  American  States  as  separate 
political  entities,  forgetting  for  the  moment  that  they  are  also 
parts  of  a  federation.  J 

f older  colonies  had  different  historical  origins.  Virginia 
and  North  Carolina  were  unlike  Massachusetts  and  Comfecti- 
cut;  New  York,  Pennsylvania,  and  Maryland  different  from 
both;  while  in  recent  times  the  stream  of  European  immigra- 
ion  as  filled  some  States  with  Irishmen,  others  with  Ger- 
mans,  others  with  Scandinavians,  and  has  left  most  of  the 
Southern  States  wholly  untouched. 

Nevertheless,  the  form  of  government  is  in  its  main  out- 
mes,  and  to  a  large  extent  even  in  its  actual  working,  the 
same  in  all  these  forty-five  Republics,  and  the  differences, 

queiiee*11^  ^  ^  r®late  *°  P°ints  °f  seoondary  eonse- 

The  States  fall  naturally  into  five  groups : _ 

States  —  Massachusetts,  Connecticut, 
Rhode  Island,  New  Hampshire,  Vermont,  Maine. 

The  Middle  States  —  New  York,  New  Jersey,  Pennsylvania 
Delaware, 1  Maryland,  Ohio,  Indiana.2 
The  Southern,  or  old  slave  States  —  Virginia,  West  Virginia 
(separated  from  Virginia  during  the  war),  North  Caro- 

*  Delaware  and  Maryland  were  slave  States,  but  did  not  secede,  and  are  in 
some  respects  to  be  classed  rather  with  the  Middle  than  with  the  Southern 

Kcky  are  WeSt  Virginia  and  MiSS0Uri’  even  Tennessee  an" 

2  Ohio  and  Indiana  are  becoming  rather  Middle  than  Western  but 
people  would  still  class  them  among  Western  States.  ’  1  y 


287 


288 


THE  STATE  GOVERNMENTS 


PART  II 


lina  South  Carolina,  Georgia,  Alabama,  Florida,  Ken¬ 
tucky  Tennessee,  Mississippi,  Louisiana,  Arkansas, 

The  NoXisteim  States- Michigan,  Illinois,  Wisconsin 
Minnesota,  Iowa,  Nebraska,  Kansas,  Colorado,  North 
Dakota,  South  Dakota,  Wyoming,  Montana,  Idaho, 

The  Pacific  States  -  California,  Nevada,  Oregon,  Washing- 
ton. 


TTnch  of  these  groups  has  something  distinctive  in  the  char¬ 
acter  of  its  inhabitants,  which  is  reflected  though  more  f  aintly 
now  than  formerly,  in  the  character  of  its  government  and 

P°New  England  is  the  old  home  of  Puritanism  the  traces 
i  f  fhrmo-li  waning  under  the  influence  of  Irish  and 
ft cii-  imuiigratiou,  .re  b,  no  mean.  ,.t 

*  *-■“  rP’— 3  fb“  ‘5  sr ,  tfSX 

not  merely  in  the  preseQr  ^  population>  and  in  certain 

attributes  laudable  as  well  as  regrettable,  of  the  ruling  class 
The  North-west  is  the  land  of  hopefulness,  and  consequently 
of  boTd  experiments  in  legislation:  its  imral  inhabitants  have 

J6  irWest^  rather'^alifornta^nd  Nevada,  for  Oregon 

anTSaStagton  belong  in  — erta 
or  North-western  group,  tinges  the  ent  y  ,  ,  ° 

o-nr.fi  nature  of  the  Westerns  with  a  speculative  leek 
natural  to  mining  communities,  where  great  fortunes  have 

rapidly  grown  and  vanished,  and  into  which  elements  havtf 

been  suddenly  swept  together  fl  ^ 

as  a  Rocky  Mountain  rainstorm  fills  the  bottom  oi  j 

with  sand  and  pebbles  from  all  the  BUr^nJ^ISg^itiong 

arrangements  between  the  States  so  also  does “nX 
nre  of  leo-al  independence  which  each  of  them  enj  } 

Z  Federal  CoottUoa.  Ho  Stale  J 

politically  deal  with  or  act  upon  any  othei  State  p 

marie  relations  can  exist  nor  treaties  be  made  between  States, 


ciiap.  xxxiv  NATURE  OF  THE  AMERICAN  STATE 


289 


no  coercion  can  be  exercised  by  one  upon  another.  And 
although  the  government  of  the  Union  can  act  on  a  State,  it 
rarely  does  act,  and  then  only  in  certain  strictly  limited 
directions,  which  do  not  touch  the  inner  political  life  of  the 
commonwealth. 

Let  us  pass  on  to  consider  the  circumstances  which  work 
for  uniformity  among  the  States,  and  work  more  powerfully 
as  time  goes  on. 

He  who  looks  at  a  map  of  the  Union  will  be  struck  by  the 
fact  that  so  many  of  the  boundary  lines  of  the  States  are 
straight  lines.  Those  lines  tell  the  same  tale  as  the  geomet¬ 
rical  plans  of  cities  like  St.  Petersburg  or  Washington,  where 
every  street  runs  at  the  same  angle  to  every  other.  The  States 
are  not  natural  growths.  Their  boundaries  are  for  the  most 
part  not  natural  boundaries  fixed  by  mountain  ranges,  nor 
even  historical  boundaries  due  to  a  series  of  events,  but  purely 
artificial  boundaries,  determined  by  an  authority  which  carved 
the  National  territory  into  strips  of  convenient  size,  as  a 
building  company  lays  out  its  suburban  lots.  Of  the  States 
subsequent  to  the  original  thirteen,  California  is  the  only  one 
with  a  genuine  natural  boundary,  finding  it  in  the  chain  of 
the  Sierra  Nevada  on  the  east  and  the  Pacific  Ocean  on  the 
west.  No  one  of  these  later  States  can  be  regarded  as  a  natu¬ 
rally  developed  political  organism.  They  are  trees  planted 
by  the  forester,  not  self-sown  with  the  help  of  the  seed¬ 
scattering  wind.  This  absence  of  physical  lines  of  demarca¬ 
tion  has  tended  and  must  tend  to  prevent  the  growth  of  local 
distinctions.  *  Nature  herself  seems  to  have  designed  the 
Mississippi  basin,  as  she  has  designed  the  unbroken  levels 
of  Russia,  to  be  the  dwelling-place  of  one  people. 

Each  State  makes  its  own  Constitution;  that  is,  the  people 
agree  on  their  form  of  government  for  themselves,  with  no 
interference  from  the  other  States  or  from  the  Union.  This 
form  is  subject  to  one  condition  only:  it  must  be  republican.1 
But  in  each  State  the  people  who  make  the  Constitution  have 
lately  come  from  other  States,  where  they  have  lived  under 

1  The  case  of  Kansas  immediately  before  the  War  of  Secession,  and  the 
cases  of  the  seceding  States,  which  were  not  readmitted  after  the  war  till  they 
had  accepted  the  constitutional  amendments  forbidding  slavery  and  protecting 
the  freedmen,  are  quite  exceptional. 


290 


THE  STATE  GOVERNMENTS 


PART  II 


and  worked  constitutions  which  are  to  their  eyes  the  natural 
and  almost  necessary  model  for  their  new  State  to  follow  j  and 
in  the  absence  of  an  inventive  spirit  among  the  citizens,  it 
was  the  obvious  course  for  the  newer  States  to  copy  the  organi¬ 
zations  of  the  older  States,  especially  as  these  agreed  with 
certain  familiar  features  of  the  Federal  Constitution.  Hence 
the  outlines,  and  even  the  phrases  of  the  elder  constitutions 
reappear  in  those  of  the  more  recently  formed  States.  The 
precedents  set  by  Virginia,  for  instance,  had  much  influence 
on  Tennessee,  Alabama,  Mississippi,  and  Florida,  when  they 
were  engaged  in  making  or  amending  their  constitutions  dur¬ 
ing  the  early  part  of  this  century. 

Nowhere  is  population  in  such  constant  movement  as  in 
America.  In  some  of  the  newer  States  only  one-fourth  or 
one-fifth  of  the  inhabitants  are  natives  of  the  United  States. 
Many  of  the  townsfolk,  not  a  few  even  of  the  farmers,  have 
been  till  lately  citizens  of  some  other  State,  and  will,  perhaps, 
soon  move  on  farther  west.  These  Western  States  are  like  a 
chain  of  lakes  through  which  there  flows  a  stream  which  min¬ 
gles  the  waters  of  the  higher  with  those  of  the  lower.  In  such 
a  constant  flux  of  population  local  peculiarities  are  not  readily 
developed,  or  if  they  have  grown  up  when  the  district  was 
still  isolated,  they  disappear  as  the  country  becomes  filled. 
Each  State  takes  from  its  neighbours  and  gives  to  its  neigh¬ 
bours,  so  that  the  process  of  assimilation  is  always  going  on 
over  the  whole  wide  area. 

Still  more  important  is  the  influence  of  railway  communi¬ 
cation,  of  newspapers,  of  the  telegraph.  A  Greek  city  like 
Samos  or  Mitylene,  holding  her  own  island,  preserved  a  dis¬ 
tinctive  character  in  spite  of  commercial  intercourse  and  the 
sway  of  Athens.  A  Swiss  canton  like  IJri  or  Appenzell, 
entrenched  behind  its  mountain  ramparts,  remains,  even  now 
under  the  strengthened  central  government  of  the  Swiss  nation, 
unlike  its  neighbours  of  the  lower  country.  But  an  American 
State,  traversed  by  great  trunk  lines  of  Railway  and  depending 
on  the  markets  of  the  Atlantic  cities  and  of  Europe  for  the 
sale  of  its  grain,  cattle,  bacon,  and  minerals,  is  attached  by  a 
hundred  always  tightening  ties  to  other  States,  and  touched 
by  their  weal  or  woe  as  nearly  as  by  what  befalls  within  its 
own  limits.  The  leading  newspapers  are  read  over  a  vast 


chap,  xxxiv  NATURE  OF  THE  AMERICAN  STATE 


291 


alea'  T'le  “habitants  of  each  State  know  every  morning  the 
events  of  yesterday  over  the  whole  Union. 

*  f6  p°litioal  Parties  are  the  same  in  all  the  States. 
Ihe  tenets  of  each  party  are  (with  some  slight  exceptions)  the 

“  eZl  I™’*  meth°dS  the  Same’  their  leaders  «'e 

same,  although  of  course  a  prominent  man  enjoys  especial 
influence  in  Ins  own  State.  Hence,  State  politics  are  largely 
s"  ayed  by  forces  and  motives  external  to  the  particular  State7 
and  common  to  the  whole  country,  or  two  great  sections  oflt- 
and  the  growth  of  local  parties,  the  emergence  of  local  issues  ’ 
and  development  of  local  political  schemes,  are  correspond¬ 
ingly  restrained.  These  considerations  explain  why  the  States 
notwithstanding  the  original  diversities  beLeen  some  of  them 
and  the  wide  scope  for  political  divergence  which  they  all 
enjoy  under  the  Federal  Constitution,  are  so  much  less^dis- 
snmlar  and  less  peculiar  than  might  have  been  expected. 

Each  of  the  States  has  its  own _ 

Constitution. 

7iio1i»is°v,"or  "a  v"io“ 

System  of  State  and  local  taxation. 

Debts,  which  it  may  repudiate  at  its  own  pleasure. 

Body  of  private  law,  including  the  whole  law  of  real  and 

relations  Pr°Pert7’  °f  °0ntracts’  of  torts’  and  of  family 
System  of  procedure,  civil  and  criminal. 

C0Uf!!”“  Thio1:  “°  aPPeal  lies  (ex(?ept  in  cases  touching 
HZil  !S  °r  the  Federal  Constitution)  to  any 

Citizenship  which  may  admit  persons  (e.g.  recent  immi- 
giants)  to  be  citizens  at  times,  or  on  conditions,  wholly 
ditterent  from  those  prescribed  by  other  States. 

ittr'ibutes>^nclude.SerVe  ‘°  *  "  “  illuStrati"S  what  these 

i  l'  atlZTirfn!23  a°tive  citizenshiP  of  the  United  States 
■  e.  a  share  m  the  government  of  the  Union)  only  by  becom- 

■g  a  citizen  of  some  particular  State.  Being  such  citizen,  he 


292 


THE  STATE  GOVERNMENTS 


PART  II 


is  forthwith  entitled  to  the  National  franchise.  That  is  to 

sav  voting  power  in  the  State  carries  voting  power  m  Federal 

elections,  and  however  lax  a  State  may  be  in  its  grant  of  such 
newer  e.p.  to  foreigners  just  landed  or  to  persons  convicted 
of  crime,  these  State  voters  will  have  the  right  of  voting  in 
congressional  and  presidential  elections.'  The  only  restriction 
on  the  States  in  this  matter  is  that  of  the'  fourteenth  and  fif¬ 
teenth  constitutional  amendments.  They  were  intended  to 
secure  equal  treatment  to  the  Negroes  and  mcideirtaHy  they 
declare  the  protection  given  to  a 11  citizens  of  the  United 
States.  Whether  they  really  enlarge  it  that  is  to  saj 
whether  it  did  not  exist  by  implication  before,  is  a  leQ 

question,  which  I  need  not  discuss.  •  its 

TT  The  power  of  a  State  over  all  communities  within  its 

limits  is  absolute.  It  may  grant  or  refuse  local  ^“t 
ci  <3  it  r>l  eases  The  population  of  the  city  of  P 
more  than  one-third  of  that  of  the  State  of  Rhode  Island  the 
uonulation  of  New  York  City  one-fourtli  that  01  the  State  of 
New  York.  But  the  State  might  in  either  case  extinguish 

fhe  municipality,  and  govern  the  city  by  a  sing  e  ^ate  com¬ 
missioner  appointed  for  the  purpose,  or  leave  it  without  an, 
government  whatever.  The  city  would  have  no  right  of 
complaint  to  the  Federal  President  or  Congress  against  sue 
a  measure.  Massachusetts  lately  remodelled  the  city  goven 
m“nt  of  Boston  just  as  the  British  Parliament  might  remodel 

thpjx f  a!  state  commands  the  allegiance  of  its  citizens,  and 
may  punish  them  for  treason  against  it.  The  power  has  raie  y 
beePexercised,  but  its  undoubted  legal  existence  had  much  to 
do  with  inducing  the  citizens  of  the  Southern  States  to  foBow 
their  governments  into  secession  m  1861.  Ihey 


i  Congress  has  power  to  pass  a  uniform  rule  of  naturalization  (Const.  Art. 
i.  §  8). 


\jncler  the  present  naturalization  laws  a  foreigner  must  have !  where 

United  States  for  five  years,  and  for  one  year  m  the  °i  r  J 

he  seeks  admission  to  United  States  citizen ship  and  must  declare  £  5^  ^ 
before  he  is  admitted  that  he  renounces  allegiance  to  any  to  g  P 
State?  Naturalization  makes  him  a  citizen  not  only  of  the 
of  the  State  or  Territory  where  he  is  admitted,  hut 

— »■*» 

persons  not  naturalized  as  United  States  citizens. 


CHAr.  xxxiv  NATURE  OF  THE  AMERICAN  STATE 


293 


themselves  to  owe  allegiance  to  the  State  as  well  as  to  the 
Union,  and  when  it  became  impossible  to  preserve  both,  be¬ 
cause  the  State  had  declared  its  secession  from  the  Union, 
they  might  hold  the  earlier  and  nearer  authority  to  be  para¬ 
mount.  Allegiance  to  the  State  must  now,  since  the  war,  be 
taken  to  be  subordinate  to  allegiance  to  the  Union.  But  alle¬ 
giance  to  the  State  still  exists;  treason  against  the  State  is 
still  possible. 

These  are  illustrations  of  the  doctrine  that  the  American 
States  were  originally  in  a  certain  sense,  and  still  for  certain 
purposes  remain,  sovereign  States.  Each  of  the  original  thir¬ 
teen  became  sovereign  (so  far  as  its  domestic  affairs  were 
concerned,  though  not  as  respects  international  relations)  when 
it  revolted  from  the  mother  country  in  1776.  By  entering 
the  Confederation  of  1781-8  it  parted  with  one  or  two  of  the 
attributes  of  sovereignty;  by  accepting  the  Federal  Constitu¬ 
tion  in  1788-91  it  subjected  itself  for  certain  specified  purposes 
to  a  central  government,  but  claimed  to  retain  its  sovereignty 
for  all  other  purposes.  That  is  to  say,  the  authority  of  a 
State  is  an  inherent,  not  a  delegated,  authority.  It  has  all 
the  powers  which  any  independent  government  can  have, 
except  such  as  it  can  be  affirmatively  shown  to  have  stripped 
itself  of,  while  the  Federal  government  has  only  such  powers 
as  it  can  be  affirmatively  shown  to  have  received.  To  use  the 
legal  expression,  the  presumption  is  always  for  a  State,  and 
the  burden  of  proof  lies  upon  any  one  who  denies  its  authority 
in  a  particular  matter.1 

What  State  sovereignty  means  and  includes  was  a  question 
which  incessantly  engaged  the  most  active  legal  and  political 
minds  of  the  nation,  from  1789  down  to  1870.  Some  thought 
it  paramount  to  the  rights  of  the  Union.  Some  considered  it 

1  As  the  colonies  had  associated  themselves  into  a  league,  at  the  very  time 
at  which  they  revolted  from  the  British  Crown,  and  as  their  foreign  relations 
were  always  managed  by  the  authority  and  organs  of  this  league,  no  one  of 
them  ever  was  for  international  purposes  a  free  and  independent  sovereign 
State.  Abraham  Lincoln  was  in  this  sense  justified  in  saying  that  the  Union 
was  older  than  the  States,  and  had  created  them  as  States.  But  what  are  we 
to  say  of  North  Carolina  and  Rhode  Island,  after  the  acceptance  of  the  Consti¬ 
tution  of  1787-9  by  the  other  eleven  States  ?  They  were  out  of  the  old  Con¬ 
federation,  for  it  had  expired.  They  were  not  in  the  new  Union,  for  they 
refused  during  many  months  to  enter  it.  What  else  can  they  have  been  during 
those  months  except  sovereign  commonwealths  ? 


294 


THE  STATE  GOVERNMENTS 


PART  II 


as  held  in  suspense  by  the  Constitution,  but  capable  of  reviv¬ 
ing  as  soon  as  a  State  should  desire  to  separate  from  the 
Union.  Some  maintained  that  each  State  had  in  accepting 
the  Constitution  finally  renounced  its  sovereignty,  which  there¬ 
after  existed  only  in  the  sense  of  such  an  undefined  domestic, 
legislative,  and  administrative  authority  as  had  not  been  con¬ 
ferred  upon  Congress.  The  conflict  of  these  views,  which 
became  acute  in  1832  when  South  Carolina  claimed  the  right 
of  nullification,  produced  secession  and  the  war  of  1861-5. 
Since  the  defeat  of  the  Secessionists,  the  last  of  these  views 
may  be  deemed  to  have  been  established,  and  the  term  “  State 
sovereignty  ”  is  now  but  seldom  heard.  Even  u  States’  rights  ” 
have  a  different  meaning  from  that  which  they  had  thirty 
years  ago. 

The  Constitution  of  1789  was  a  compromise,  and  a  com¬ 
promise  arrived  at  by  allowing  contradictory  propositions  to 
be  represented  as  both  true.  To  every  one  who  urged  that 
there  were  thirteen  States,  and  therefore  thirteen  governments, 
it  was  answered,  and  truly,  that  there  was  one  government, 
because  the  people  were  one.  To  every  one  who  declared  that 
there  was  one  government,  it  was  answered  with  no  less  truth 
that  there  were  thirteen.  Thus  counsel  was  darkened  by 
words  without  knowledge;  the  question  went  off  into  meta¬ 
physics,  and  found  no  end,  in  wandering  mazes  lost. 

There  was,  in  fact,  a  divergence  between  the  technical  and 
the  practical  aspects  of  the  question.  Technically,  the  seced¬ 
ing  States  had  an  arguable  case;  and  if  the  point  had  been 
one  to  be  decided  on  the  construction  of  the  Constitution  as  a 
court  decides  on  the  construction  of  a  commercial  contract, 
they  were  possibly  entitled  to  judgment.  Practically,  the 
defenders  of  the  Union  stood  on  firmer  ground,  because  cir¬ 
cumstances  had  changed  since  1789  so  as  to  make  the  nation 
more  completely  one  nation  than  it  then  was,  and  had  so 
involved  the  fortunes  of  the  majority  which  held  to  the  Union 
with  those  of  the  minority  seeking  to  depart,  that  the  majority 
might  feel  justified  in  forbidding  their  departure.  Stripped 
of  legal  technicalities,  the  dispute  resolved  itself  into  the 
problem  often  proposed  but  capable  of  no  general  solution: 
When  is  a  majority  entitled  to  use  force  for  the  sake  of 
retaining  a  minority  in  the  same  political  body  with  itself? 


chap,  xxxiv  NATURE  OF  THE  AMERICAN  STATE 


295 


To  this  question,  when  it  appears  in  a  concrete  shape,  as  to 
the  similar  question  when  an  insurrection  is  justifiable  an 
answer  can  seldom  be  given  beforehand.  The  result  decides 
When  treason  prospers,  none  dare  call  it  treason. 

What,  then,  do  the  rights  of  a  State  now  include?  Every 
right  or  power  of  a  government  except _  J 

■  The  right  of  secession  (not  abrogated  in  terms,  but  admitted 

since  the  war  to  be  no  longer  claimable.  It  is  expressly 

negatived  in  the  recent  Constitutions  of  several  Southern 
States). 

Powers  which  the  Constitution  withholds  from  the  States 

(including  that  of  intercourse  with  foreign  govern¬ 
ments). 

Powers  which  the  Constitution  expressly  confers  on  the 
federal  government. 

As  respects  some  powers  of  the  last  class,  however,  the 
btates  may  act  concurrently  with,  or  in  default  of  action  by 
the  Federal  government.  It  is  only  from  contravention  of  its 
ac  ion  that  they  must  abstain.  And  where  contravention  is 
alleged  to  exist,  whether  legislative  or  executive,  it  is  bv  a 
court  of  law,  and,  in  case  the  decision  is  in  the  first  instance 
favourable  to  the  pretensions  of  the  State,  ultimately  by  a 
federal  court,  that  the  question  is  decided. 

Looking  at  this  immense  compass  of  State  functions,  Jeffer- 
son  would  seem  to  have  been  not  far  wrong  when  he  said  that 
the  federal  government  was  nothing  more  than  the  American 
department  of  foreign  affairs.  But  although  the  National 
government  touches  the  direct  interests  of  the  citizen  less 
than  does  the  State  government,  it  touches  his  sentiment 
more  Hence  the  strength  of  his  attachment  to  the  former 
and  his  interest  in  it  must  not  be  measured  by  the  frequency 
p  flings  with  it.  In  the  partitionment  of  governmental 
tunctions  between  nation  and  State,  the  State  gets  the  most 

cut  the  nation  the  highest,  so  the  balance  between  the  two  is 
oreserved. 

Tims  every  American  citizen  lives  in  a  duality  of  which 
Europeans  always  excepting  the  Swiss,  and  to  some  extent  the 
mermans,  have  no  experience.  He  lives  under  two  govern- 
nents  and  two  sets  of  laws  5  he  is  animated  by  two  patriotisms 


296 


THE  STATE  GOVERNMENTS 


PART  II 


and  owes  two  allegiances.  That  these  should  both  be  strong 
and  rarelv  be  in  conflict  is  most  fortunate.  It  is  the  result  of 
skilful  adjustment  and  long  habit,  of  the  fact  that  those  whose 
votes  control  the  two  sets  of  governments  are  the  same  persons 
but  above  all  of  that  harmony  of  each  set  of  institutions  with 
the  other  set,  a  harmony  due  to  the  identity  of  the  pnncip  es 
whereon  both  are  founded,  which  makes  each  appear  necessary 
to  the  stability  of  the  other,  the  States  to  the  nation  as  its 
basis,  the  National  government  to  the  States  as  their  pro- 

tector. 


♦ 


( 


CHAPTER  XXXV 


STATE  CONSTITUTIONS 

The  government  of  each  of  the  forty-five  States  is  deter¬ 
mined  by  and  set  forth  in  its  Constitution,  a  comprehensive 
fundamental  law,  or  rather  group  of  laws  included  in  one 
instrument,  which  has  been  directly  enacted  by  the  people  of 
the  State,  and  is  capable  of  being  repealed  or  altered,  not  by 
their  representatives,  but  by  themselves  alone.  As  the  Con¬ 
stitution  of  the  United  States  stands  above  Congress  and  out 
of  its  reach,  so  the  Constitution  of  each  State  stands  above  the 
legislature  of  that  State,  cannot  be  varied  in  any  particular 
by  the  State  legislature,  and  involves  the  invalidity  of  any 
statute  passed  by  that  legislature  which  is  found  to  be  incon¬ 
sistent  with  it. 

The  State  Constitutions  are  the  oldest  things  in  the  political 
history  of  America,  for  they  are  the  continuations  and  repre¬ 
sentatives  of  the  royal  colonial  charters,  whereby  the  earliest 
English  settlements  in  America  were  created,  and  under  which 
their  several  local  governments  were  established,  subject  to 
the  authority  of  the  English  Crown  and  ultimately  of  the 
British  Parliament.  But,  like  most  of  the  institutions  under 
which  English-speaking  peoples  now  live,  they  have  a  pedi¬ 
gree  which  goes  back  to  a  time  anterior  to  the  discovery  of 
America  itself.  It  begins  with  the  English  trade  guild  of  the 
Middle  Ages,  itself  the  child  of  still  more  ancient  corpora¬ 
tions,  dating  back  to  the  days  of  imperial  Rome,  and  formed 
under  her  imperishable  law.  Charters  were  granted  to  mer¬ 
chant  guilds  in  England  as  far  back  as  the  days  of  King 
Henry  I.  Edward  IV.  gave  an  elaborate  one  to  the  Mer¬ 
chant  Adventurers  trading  with  Flanders  in  1463.  In  it  we 
may  already  discern  the  arrangements  which  are  more  fully 
set  forth  in  two  later  charters  of  greater  historical  interest, 
the  charter  of  Queen  Elizabeth  to  the  East  India  Company  in 

29T 


298 


THE  STATE  GOVERNMENTS 


PART  II 


1599,  and  the  charter  of  Charles  I.  to  the  “  Governor  and 
Company  of  the  Massachusetts  Bay  in  Ne we -England  ”  in 
1628.  Both  these  instruments  establish  and  incorporate  trad¬ 
ing  companies,  with  power  to  implead  and  be  impleaded,  to 
use  a  common  seal,  to  possess  and  acquire  lands,  tenements, 
and  hereditaments,  with  provisions  for  the  making  of  ordi¬ 
nances  for  the  welfare  of  the  company. 

The  Massachusetts  Charter  creates  a  frame  of  government, 
consisting  of  a  governor,  deputy-governor,  and  eighteen 
assistants  (the  term  still  in  use  in  many  of  the  London  city 
guilds),  and  directs  them  to  hold  four  times  a  year  a  general 
meeting  of  the  company,  to  be  called  the  “  greate  and  generall 
Court,”  in  which  general  court  “the  Governor  or  deputie 
Governor,  and  such  of  the  assistants  and  Freemen  of  the 
Company  as  shall  be  present,  shall  have  full  power  and 
authority  to  choose  other  persons  to  be  free  of  the  Company, 
and  to  elect  and  constitute  such  officers  as  they  shall  thinke 
fit  for  managing  the  affaires  of  the  saide  Governor  and  Com¬ 
pany,  and  to  make  Lawes  and  Ordinances  for  the  Good  and 
Welfare  of  the  saide  Company,  and  for  the  Government  and 
Ordering  of  the  saide  Landes  and  Plantasion,  and  the  People  ‘ 
inhabiting  and  to  inliabite  the  same,  soe  as  such  Lawes  and 
Ordinances  be  not  contrary  or  repugnant  to  the  Lawes  and 
Statuts  of  this  our  realme  of  England.” 

In  1691,  the  charter  of  1628  having  been  declared  forfeited 
in  1684,  a  new  one  was  granted  by  King  William  and  Queen 
Mary,  and  this  instrument,  while  it  retains  much  of  the  lan¬ 
guage  and  some  of  the  character  of  the  trade  guild  charter,  is 
really  a  political  frame  of  government  for  a  colony.  The 
assistants  receive  the  additional  title  of  councillors;  their 
number  is  raised  to  twenty-eight;  they  are  to  be  chosen  by 
the  general  court,  and  the  general  court  itself  is  to  consist, 
together  with  the  governor  and  assistants,  of  freeholders 
elected  by  towns  or  places  within  the  colony,  the  electors 
being  persons  with  a  forty  shilling  freehold,  or  other  property 
worth  £40.  The  governor  is  directed  to  appoint  judges,  com¬ 
missioners  of  oyer  and  terminer,  etc. ;  the  general  court 
receives  power  to  establish  judicatories  and  courts  of  record, 
to  pass  laws  (being  not  repugnant  to  the  laws  of  England), 
and  to  provide  for  all  necessary  civil  offices.  An  appeal  from 


CIIAP.  XXXV 


STATE  CONSTITUTIONS 


299 


the  cciu-is  shall  always  be  to  the  king  in  his  privy  council 
is  a  tine  political  constitution.1  Under  it  the  colony 
was  governed,  and  m  the  main  well  and  wisely  governed  tin 
<l780'  ^Iuel1  of  lt>  not  merely  its  terms,  such  as  the  name 

bodilv  to  thlw  US  S°lid  frainework>  was  transferred 
y  to  the  Massachusetts  Constitution  of  1780,  which  is 

now  m  force  and  which  profoundly  influenced  the  Convention 

that  piepared  the  Federal  Constitution  in  1787. 

Yet  the  charter  of  1691  is  nothing  but  an  extension  and 
development  of  the  trading  charter  of  1628,  in  which  there 
already  appears,  as  there  had  appeared  in  Edward  IV. ’s  charter 
463,  and  in  the  East  India  Company’s  charter  of  1599  the 
provision  that  the  power  of  law-giving,  otherwise  unlimited 
s  ould  be  restricted  by  the  terms  of  the  charter  itself  which 
required  that  every  law  for  the  colony  should  be  agreeable  to 
the  laws  of  England  We  have  therefore  in  the  three  charter! 

hi  St  oMoT Cm  71 146i3’  15"’  and  1628>  as  wel1  as 

in  hat  of  1691,  the  essential  and  capital  characteristic  of  a 
rigid  or  supreme  constitution  -  viz.  a  frame  of  government 
ptablished  by  a  superior  authority.  creati^UTlsubordinate' 
lawrtaakmg_body,  which  cmZdoIa^thing  efnopt  thr 
terms,  and  Uajiagfindrthejjowers_o7  the  instrument  to'  which  it 
ov^t^^existenfia.  So  long  as  the  colony  remained  under  ~ 
the  British  Crown,  the  superior  authority,  which  could  amend 
or  remake  the  frame  of  government,  was  the  British  Crown  or 
Parliament.  When  the  connection  with  Britain  was  severed 
that  authority  passed  over,  not  to  the  State  legislature,  which 
remained  limited,  as  it  always  had  been,  but  to  the  people  of 
me  now  independent  commonwealth,  whose  will  speaks  through 
vhat  is  now  the  State  Constitution,  just  as  the  will  of  the 

kiln'd  169 1ParHament  had  sP°ken  through  the  charters  of 

I  have  taken  the  case  of  Massachusetts  as  the  best  example 
’f  the  way  in  which  the  trading  company  grows  into  a  colony, 

1  The  oldest  truly  political  constitution  in  America  is  the  ^ 

“r  v? ^ 

»  English  colony  of  Connecticut  T^7  °J 

le  Mayflower  may  perhaps  claim  to  have  in  it  the  germs  of  a  government” 


300 


THE  STATE  GOVERNMENTS 


PART  II 


and  the  colony  into  a  State.  But  some  of  the  other ^colonies 
furnish  illustrations  scarcely  less  apposite.  The  oldes 
them  all,  the  acorn  whence  the  oak  of  English  dominion  m 
America’ has  sprung,  the  colony  of  V n-ginia,  was  by  the 
second  charter,  of  1609,  established  under  the  title  of  The 
Treasurer  and  Company  of  Adventurers  and  Planters  of 
the  City  of  London  for  the  first  colony  m  Virginia.  _ 

When  in  1776,  the  thirteen  colonies  threw  off  their  alle 
giance  to  King  George  III.,  and  declared  themselves  mdepen- 
dent  States,  the  colonial  charter  naturally  became  the  State 
constitution.2  In  most  cases  it  was  remodelled  with ^  large 
alterations,  by  the  revolting  colony.  But  m  three  State  it 
was  maintained  unchanged,  except  of  course,  so  far  as  C  own 
authority  was  concerned,  viz.  m  Massachusetts  ti  i  , 
Connecticut  till  .1818,  and  in  Rhode  Island  till  184-  The 


l  The  nhrase  First  colony  distinguishes  what  afterwards  became  the  State 

EvenTd\d^^^  New  Jersey  *?  hZ  thatf 

her  children.  *  provided  a|waySi  and  it  is  the  true  intent  and  meaning 

of  thii^Congress  that  if  a  reconciliation  between  Great  Britain  and  these 

rntertataefas  “o  the  use  of  colonies  may  be  found  in  the  famous  dmcussion  in 
the  fourth  book  of  Adam  Smith’s  Wealth  of  Nations,  which  appeared  in  1776. 

3  Rhode  Island  simply  passed  a  statute  by  her  legisjfture,  m  {gr  <  ’  s 

stunting  allegiance  to  and " 

•  -i  -j  i  a?  Vino'  nr  r>rinc*6  wh2it6V6r ;  find.  th&t  this  republic  > 

Eli 

is  all  that  Connecticut  thought  necessary.  She  had  Posse,ss,e.ir^n^af]id  u0 
Island  also,  the  right  of  appointing  her  own  governor,  and  therefore  did 
need  to  substitute  any  new  authority  for  a  royal  goveinoi. 


CIIAP.  XXXV 


STATE  CONSTITUTIONS 


301 


other  States  admitted  to  the  Union  in  addition  to  the  original 
thirteen,  have  entered  it  as  organized  self-governing  communi¬ 
ties,  with  their  constitutions  already  made  by  their  respective 
peoples.  Each  act  of  Congress  which  admits  a  new  State 
admits  it  as  a  subsisting  commonwealth,  sometimes  empower¬ 
ing  its  people  to  meet  and  enact  a  constitution  for  themselves 
(subject  to  conditions  mentioned  in  the  act),  sometimes  accept¬ 
ing  and  confirming  a  constitution  so  already  made  by  the 
people.1  Congress  may  impose  conditions  which  the  State 
constitution  must  fulfil;  and  in  admitting  the  six  newest 
States  has  affected  to  retain  the  power  of  maintaining  these 
conditions  in  force.  But  the  authority  of  the  State  constitu¬ 
tions  does  not  flow  from  Congress,  but  from  acceptance  by  the 
citizens  of  the  States  for  which  they  are  made.  Of  these 
instruments,  therefore,  no  less  than  of  the  constitutions  of 
the  thirteen  original  States,  we  may  say  that  although  subse¬ 
quent  in  date  to  the  Federal  Constitution,  they  are,  so  far  as 
each  State  is  concerned,  de  jure  prior  to  it.  Their  authority 
over  their  own  citizens  is  nowise  derived  from  it.2  Nor  is 
this  a  mere  piece  of  technical  law.  The  antiquity  of  the  older 
States  as  separate  commonwealths,  running  back  into  the 
heroic  ages  of  the  first  colonization  of  America  and  the  days 
of  the  Be  volutionary  War,  is  a  potent  source  of  the  local 
patriotism  of  their  inhabitants,  and  gives  these  States  a  sense 
of  historic  growth  and  indwelling  corporate  life  which  they 
could  not  have  possessed  had  they  been  the  mere  creatures  of 
the  Federal  Government. 

The  State  constitutions  of  America  well  deserve  to  be  com¬ 
pared  with  those  of  the  self-governing  British  colonies.  But 
one  remarkable  difference  must  be  noted  here.  The  constitu¬ 
tions  of  British  colonies  have  all  proceeded  from  the  Imperial 
Parliament  of  the  United  Kingdom,  which  retains  its  full 

1  In  the  Act  of  1889  for  the  admission  of  North  Dakota.  South  Dakota,  Mon¬ 
tana,  and  Washington  the  former  course,  in  the  admission  of  Idaho  and 
Wyoming  in  1890  the  latter  course,  was  followed. 

2  In  practice  Congress  can  influence  the  character  of  a  State  constitution, 
because  a  State  whose  constitution  contains  provisions  which  Congress  disap¬ 
proves  may  be  refused  admission.  But  since  the  extinction  of  slavery  and 
completion  of  the  process  of  reconstruction,  occasions  for  the  serious  exercise 
of  such  a  power  rarely  arise.  It  was  used  to  compel  the  seceding  States  to 
modify  their  constitutions  so  as  to  get  rid  of  all  taint  of  slavery  before  their 
senators  and  representatives  were  readmitted  to  Congress  after  the  war. 


302 


THE  STATE  GOVERNMENTS 


PART  II 


legal  power  of  legislating  for  every  part  of  the  British  domin¬ 
ions.  In  many  cases  a  colonial  constitution  provides  that  it 
may  be  itself  altered  by  the  colonial  legislature,  of  course  with 
the  assent  of  the  Crown;  but  inasmuch  as  in  its  origin  it  is  a 
statutory  constitution,  not  self-grown,  but  planted  as  a  shoot 
by  the  Imperial  Parliament  at  home,  Parliament  may  always 
alter  or  abolish  it.  Congress,  on  the  other  hand,  has  no 
power  to  alter  a  State  constitution.  And  whatever  power  of 
alteration  has  been  granted  to  a  British  colony  is  exercisable 
by  the  colonial  legislature,  not,  as  in  America,  by  the  citizens 
at  large. 

The  original  constitutions  of  the  States,  whether  of  the  old 
thirteen  or  of  the  newer  ones,  have  been  in  nearly  every  case 
(except  those  of  the  newest  States)  subsequently  recast,  in 
some  instances  five,  six,  or  even  seven  times,  as  well  as 
amended  in  particular  points.  Thus  constitutions  of  all 
dates  are  now  in  force  in  different  States,  from  that  of 
Massachusetts,  enacted  in  1780,  but  largely  amended  since, 
to  that  of  Utah,  enacted  in  1894. 

The  constitutions  of  the  revolutionary  period  were  in  a  few 
instances  enacted  by  the  State  legislature,  acting  as  a  body 
with  plenary  powers,  but  more  usually  by  the  people  acting 
through  a  convention,  i.e.  a  body  especially  chosen  by  the 
voters  at  large  for  the  purpose,  and  invested  with  full  powers, 
not  only  of  drafting,  but  of  adopting  the  instrument  of  gov¬ 
ernment.1  Since  1835,  when  Michigan  framed  her  constitu¬ 
tion,  the  invariable  practice  in  the  Northern  States  has  been 
for  the  convention,  elected  by  the  voters,  to  submit,  in  accord¬ 
ance  with  the  precedents  set  by  Massachusetts  in  1780,  and 
by  Maine  in  1820,  the  draft  constitution  framed  by  it  to  the 
citizens  of  the  State  at  large,  who  voted  upon  it  Yes  or  No. 
They  usually  vote  on  it  as  a  whole,  and  adopt  or  reject  it  en 
bloc,  but  sometimes  provision  is  made  for  voting  separately  on 


1  In  Rhode  Island  and  Connecticut  the  legislature  continued  the  colonial 
constitution.  In  South  Carolina  a  body  calling  itself  the  “  Provincial  Con¬ 
gress  ”  claimed  to  he  the  “General  Assembly,”  or  legislature  of  the  colony, 
and  as  such  enacted  the  Constitution.  In  the  other  revolting  colonies,  except 
Massachusetts,  conventions  or  congresses  enacted  the  constitution,  not  sub¬ 
mitting  it  to  the  voters  for  ratification.  In  Massachusetts  the  convention 
submitted  its  draft  to  the  voters  in  1780,  and  the  voters  adopted  it,  a  previous 
draft  tendered  by  the  legislature  in  1778  having  been  rejected. 


CHAP.  XXXV 


STATE  CONSTITUTIONS 


303 


some  particular  point  or  points.  In  the  Southern  States  the 

submirthelrlfttoll  ^  gr°Wing  tendency  has  been  to 
° m: it  the  draft  to  the  people.  In  1890,  however,  Mississirmi 

em  acted  a  new  Constitution  by  a  convention  aline  andT 

Kentucky  (in  1891),  after  the  draft  Constitution  which  the 

convention  had  prepared  had  been  submitted  to  and  accepted 

theaconveSioVnT  ^  th®  Statute  which  summ°ned 

alterattenfon  wl  T  Cf0nventlon  “ret  again  and  made  some 
since  consulted  ’  Strang6  t0  Say’  the  pe0Ple  »<*  been 

gke  peogleof a  State  retain  for  ever  in  their  hands  alto- 
^hermde^dent  of,  th^tional^overnment,  the  nowo,  ~nf 

comes  from  Vim  he  °f  amended>  *he  initiative  usually 

or  bv  a  two  th  i  glSkture>  Whlch  (either  by  a  simple  majority, 

legislatures  flTt]S  °r  by  a  maiority  in  two  successive 

inbmftX’1  n  constitution  may  in  each  instance  provide) 
submits  the  matter  to  the  voters  in  one  of  two  ways  ,  It  mav 

t  maVasTthe  t0  ^  certa«  specific  amendments,  >  ol 

She  pronrtv  nfPeTr6  *°  de°lde  by  a  direct  P°PuIai’  on 
he  wb!  l  "  ■  f -Ca  Ing  a  constitutional  convention  to  revise 
-he  whole  existing  constitution.  In  the  former  case  the 

i^bv  The  S.,SUggested  by  the  legislature  are  directly  voted 
n  by  the  citizens;  m  the  latter  the  legislature,  so  soon  as 

■ides  forTh  hr:V°ted  f°r  the  h°lding  of  a  convention,  pre¬ 
lected  th  T  7  16  P60ple  0f  this  convention.  When 

d  constetutTorT  d°n  meetS’  S6tS  t0  W°rk’  g0es  through  the 
lly  presented° to  th  *  "6W  °ne’  which  is  then  usu- 

olls  OnTvl  th  TFh°Pc!  °r  ratification  or  rejection  at  the 
mending  the  r-  *h  .  ,lt^®  Statf  °f  Delaware  is  the  function  of 

le  sTbsLuent  raHfi  t10n  ^  *°  the  legislatnre  without 
?er  to  the  T  atlfacat’on  of  a  popnlar  vote,  subject,  how- 

lccessive  le^Xt®1011  ^  °hanges  raust  be  passed  by  two 

TpTe  It  the  T  T’  haVe  been  Put  before  the 

hi  .  e  e^ec^10n  of  members  for  the  second  snrnp 

a  es  provide  for  the  submission  to  the  people  at  fixed  inter¬ 
ne  SSI  brr  P0Wer  t0  P">P°“  amendments : 

-  need  for  a  revtaw  craved  T  the  ‘’“Pie  every  seven  years  as  to 
ly  after  stated  intervals,  e.g.  of  five' "yeare!  ‘h<!  Ie«lslature  can  do  so 


the  state  governments 


PART  II 


304 


Vils  of  seven,  ten,  sixteen,  or  twenty  years,  of  the  propriety 
flllinl  a  convention  to  revise  the  constitution,  so  as  to 
lur?  that  th :  attention  of  the  people  shall  be  drawn  to  the 
nuestion  whether  their  scheme  of  government  ought  or  ou0  t 

quest  on  w  e  ^ed^  Be  it  obsel.ved,  however,  that  whereas 

the  Federal  Constitution  can  be  amended  only  by  a  vote  o 
three-fourths  of  the  States,  a  constitution  can  m  nearly  every 
State  be  changed  by  a  bare  majority  of  the  citizens mg  t 
the  noils  1  Hence  we  may  expect,  and  shall  find,  t 
instruments  are  altered  more  frequently  and  materially  than 

the  Federal  Constitution  has  been.  __oceS8  of 

The  tendency  of  late  years  has  been  to  make  the  piocess 

alteration  quicker;  for  recent  constitutions  generally  provide 
tiat  one  eX  ature,  not  two  successive  legislatures  may  pro¬ 
pose  anamendmeiit,  which  shall  at  once  take  effect  it  accepted 
A  State  constitution  is  notonlyjndependeBt  of  the  central 

certain 

ItlTidso  the  fundamental  organic . law_qf  the.  btate_it§^. 

'The  State  existsTas  a  commonwealth  by  virtue  of  its  constitu¬ 
tion  alld  all  State  authorities,  legislative,  executive,  and  judi 
cial  ’  are  the  creatures  of,  and  subject  to,  the  State  constitution 
Just  as  the  President  and  Congress  are  placed  beneath  tj 
Federal  Constitution,  so  the  governor  and  Houses  *te 

are  subject  to  its  constitution,  and  any  act  of  them i  done >eit 
in  contravention  of  its  provisions,  or  in  excess  of  the  powers  i 
confers  on  them,  is  absolutely  void.  All  that  has  been  sai 
in  preceding  chapters  regarding  the  functions  of  the  courts 
of  law  where  an  act  of  Congress  is  alleged  to  be  «»» 
with  the  Federal  Constitution,  applies  equally  where  a  statut 
passed  by^ a  State  legislature  is  alleged  to  transgress  the  con¬ 
stitution  of  the  State,  and  of  coursg such  validity  may  be 
’-contested  in  any  court,  whether  a  State  couit  o  . 

-i  •  r»  ic 


i  Sometimes,  however,  an  absolute  ma]on  y  au^ward  meetings!  a 

required.  In  Rhode  Island  (where  the  voting  ismtow  thedratification  of  the 
three-fifths  majority  is  needed,  and: in  Sor i  each  House  is  necessary, 

next  elected  legislature  by  a  two-thm  s  1  ^  bg  approved  by  a  majority 

In  Delaware  the  proposal  to  call  a  conventio  »  I  P  number  who 

but  has  not  yet  been  able  to  secure  a  sufiiciently  lartoe  vo 


CHAP.  XXXV 


STATE  CONSTITUTIONS 


305 


court,  because  the  question  is  an  ordinary  question  of  law 
and  is  to  be  solved  by  determining  whether  or  no  a  law  of 

interior  authority  is  inconsistent  with  a  law  of  superior 
authority.  r 

Whenever  in  any  legal  proceeding  before  any  tribunal, 
either  party  relies  on  a  State  statute,  and  the  other  party 
alleges  that  this  statute  is  ultra  vires  of  the  State  legislature 
and  therefore  void,  the' tribunal  must  determine  the  question 
just  as  it  would  determine  whether  a  by-law  made  by  a 
municipal  council  or  a  railway  company  was  in  excess  of  the 
law-making  power  which  the  municipality  or  the  company 
had  received  from  the  higher  authority  which  incorporated  it 

T,  -ga7e  Such  leglslatlye  power  as  it  possesses.  But 
although  Federal  courts  are  fully  competent  to  entertain  a 
question  arising  on  the  construction  of  a  State  constitution 
their  practice  is  to  follow  the  precedent  set  by  any^cision 
of  a  court  of  the  State  m  question,  just  as  they  would  follow 
the  decision  of  a  French  court  in  determining  a  point  of 
rench  law.  Each  State  must  be  assumed  to  know  its  own 
law  better  than  a  stranger  can;  and  the  Supreme  Court  of  a 
fetate  is  held  to  be  the  authorized  exponent  of  the  mind  of  the 
people  who  enacted  its  Constitution. 

A  State  constitution  is  really  nothing  but  a  law  made 
direct  y  by  the  people  voting  at  the  polls  upon  a  draft  sub¬ 
mitted  to  them.  The  people  when  they  so  vote  act  as  a 
primary  and  constituent  assembly,  just  as  if  they  were  all 
summoned  to  meet  in  one  place  like  the  folkmoots  of  our 
eutomc  forefathers.  It  is  only  their  numbers  that  prevent 
;hem  from  so  meeting  in  one  place,  and  oblige  the  vote  to  be 
'aken  at  a  variety  of  polling  places.  Hence  the  enactment  of 
i  constitution  is  an  exercise  of  direct  popular  sovereignty  to 
vhich  we  find  few  parallels  in  modern  Europe,  though  it  was 
ami  liar  enough  to  the  republics  of  antiquity,  and  has  lasted 
ill  now  in  some  of  the  cantons  of  Switzerland. 


CHAPTER  XXXYI 

CONTENTS  OF  STATE  CONSTITUTIONS 

The  importance  of  this  character  of  a  State  constitution  as 
a  nopularly  enacted  law,  overriding  every  minor  State  law, 
becomes  all  the  greater  when  the  contents  of  ^ese  constitu¬ 
tions  are  examined.  Europeans  conceive  of  a  constitution  as 
an  instrument,  usually  a  short  instrument,  which  creates  a 
frame  of  government,  defines  its  departments  and  powers,  ana 
declares  the  “primordial  rights”  of  the  subject  or  citizen  as 
against  the  rulers.  An  American  State  constitution  does  t  is^ 
but  does  more;  and  in  most  cases,  infinite  y  more, 
with  a  variety  of  topics  which  in  Europe  would  be  left  to  the 
ordinary  action  of  the  legislature,  or  of  administrative  author  ^ 
ties ;  and  it  pursues  these  topics  into  a  minute  detail  hard  y 
to  be  looked  for  in  a  fundamental  instrument.  Some  of  these 
details  will  he  mentioned  presently.  Meantime  I  will  ske  c 
in  outline  the  frame  and  contents  of  the  more  recent  constitu¬ 
tions  reserving  for  the  next  chapter  remarks  on  the  differ¬ 
ences’  of  type  between  those  of  the  older  and  those  of  the 

newer  States.  # 

A  normal  constitution  consists  of  five  parts : 

I.  The  definition  of  the  boundaries  of  the  State.  (This 
does  not  occur  in  the  case  of  the  older  States.) 

II  The  so-called  Bill  of  Eights  —  an  enumeration  whereof 
more  anon)  of  the  citizens’  primordial  rights  to  liberty  ° 
person  and  security  of  property.  This  usually  stands  at  the 
beeinning  of  the  constitution,  but  occasionally  at  the  end. 

III  The  frame  of  government  —  i-e.  the  names,  functions, 
and  powers  df  the  legislative  bodies  (including  Provlsl°“8 
anent  the  elective  suffrage),  the  executive  officers,  and  the 

courts  of  iustice.  .  .  ,  ,•  _ 

IY.  Miscellaneous  provisions  relating  to  administration 

306 


I 


ciur.  xxxvi  CONTENTS  OF  STATE  CONSTITUTIONS 


and  law,  including  articles  treating  of  education,  of  the 
militia,  of  taxation  and  revenue,  of  the  public  debts,  of  local 
government,  of  State  prisons  and  hospitals,  of  agriculture,  of 
labour,  of  impeachment,  and  of  the  method  of  amending  the 
constitution,  besides  other  matters  still  less  political  in  their 
chaiacter.  The  order  in  which  these  occur  differs  in  different 
instruments,  and  there  are  some  in  which  some  of  the  above 
topics  aie  not  mentioned  at  all.  The  more  recent  constitu¬ 
tions  and  those  of  the  newer  States  are  much  fuller  on  these 
points. 

V.  The  schedule,  which  contains  provisions  relating  to  the 
method  of  submitting  the  constitution  to  the  vote  of  the 
people  and  arrangements  for  the  transition  from  the  previous 
constitution  to  the  new  one  which  is  to  be  enacted  by  that 
vote.  Being  of  a  temporary  nature,  the  schedule  is  not  strictly 
a  part  of  the  constitution. 

The  Bill  of  Bights  is  historically  the  most  interesting  part  of 
these  constitutions,  for  it  is  the  legitimate  child  and  repre¬ 
sentative  of  Magna  Charta,  and  of  those  other  declarations 
and  enactments,  down  to  the  Bill  of  Bights  of  the  Act  of  1 
William  and  Mary,  session  2,  by  which  the  liberties  of  Eng¬ 
lishmen  have  been  secured.  Most  of  the  thirteen  colonies 
when  they  asserted  their  independence  and  framed  their  con¬ 
stitutions  inserted  a  declaration  of  the  fundamental  rights  of 
the  people,  and  the  example  then  set  has  been  followed  by  the 
newer  States,  and,  indeed,  by  the  States  generally  in  their 
most  recent  constitutions.  Considering  that  all  danger  from 
the  exercise  of  despotic  power  upon  the  people  of  the  States 
by  the  executive  has  long  since  vanished,  their  executive 
authorities  being  the  creatures  of  popular  vote  and  nowadays 
father  too  weak  than  too  strong,  it  may  excite  surprise  that 
;hese  assertions  of  the  rights  and  immunities  of  the  individual 
citizen  as  against  the  government  should  continue  to  be  re¬ 
peated  in  the  instruments  of  to-day.  A  reason  may  be  found 
in  the  remarkable  constitutional  conservatism  of  the  Ameri¬ 
cans,  and  in  their  fondness  for  the  enunciation  of  the  general 
naxims  of  political  freedom.  But  it  is  also  argued  that  these 
leclarations  of  principle  have  a  practical  value,  as  asserting 
Be  rights  of  individuals  and  of  minorities  against  arbitrary 
conduct  by  a  majority  in  the  legislature,  which  might,  in  the 


308 


THE  STATE  GOVERNMENTS 


PART  II 


absence  of  such  provisions,  be  tempted  at  moments  of  excite¬ 
ment  to  suspend  the  ordinary  law  and  arm  the  magistrates 
with  excessive  powers.  They  are  therefore,  it  is  held,  still 
safeguards  against  tyranny;  and  they  se-ve  the  purpose  of 
solemnly  reminding  a  State  legislature  and  its  officers  of  those 
fundamental  principles  which  they  ought  never  to  overstep. 
Although  such  provisions  certainly  do  restrain  a  legislat¬ 
ure  in  ways  which  the  British  Parliament  would  find  incon¬ 
venient,  few  complaints  of  practical  evils  thence  arising  are 

heard. 

I  may  mention  a  few  curious  provisions  which  occur  in 

some  of  these  Bills  of  Bights. 

All  provide  for  full  freedom  of  religious  opinion  and  wor¬ 
ship,  and  for  the  equality  before  the  law  of  all  religious 
denominations  and  their  members ;  and  many  forbid  the  estab¬ 
lishment  of  any  particular  church  or  sect,  and  declare  that  no 
public  money  ought  to  be  applied  in  aid  of  any  religious  body 
or  sectarian  institution. 

Louisiana  (Constitution  of  1879)  declares  that  “all  govern-  - 
ment  of  right  originates  with  the  people,  is  founded  on  their 
will  alone,  and  is  instituted  solely  for  the  good  of  the  whole, 
deriving  its  just  powers  from  the  consent  of  the  governed. 
Its  only  legitimate  end  is  to  protect  the  citizen  in  the  enjoy¬ 
ment  of  life,  liberty,  and:  property.  When  it  assumes  other 
functions,  it  is  usurpation  and  oppression.” 

Thirty-one  States  declare  that  “  all  men  have  a  natural, 
inherent,  and  inalienable  right  to  enjoy  and  defend  life  and- 
liberty ;  ”  and  all  of  these,  except  the  melancholy  AEissouri, 
add  the  “natural  right  to  pursue  happiness,”  . 

Twenty -two  declare  that  all  men  have  “a  natural  right  to 
acquire,  possess,  and  protect  property.” 

Kentucky  (Constitution  of  1891)  lays  down  that  “absolute 
arbitrary  power  over  the  lives,  liberty,  and  property  of  free¬ 
men  exists  nowhere  in  a  republic,  not  even  in  the  largest 
majority.  All  men  when  they  form  a  social  compact  are 
equal.  All  power  is  inherent  in  the  people,  and  all  free 
governments  are  founded  on  their  authority,  and  instituted  for 
their  peace,  safety,  happiness,  and  security,  and  the  protec¬ 
tion  of  property.  For  the  advancement  of  these  ends  they- 
have  at  all  times  an  inalienable  and  indefeasible  right  to  alter, 


chap,  xxxvi  CONTENTS  OF  STATE  CONSTITUTIONS 


309 


reform,  or  abolish  their  government  in  such  manner  as  they 
may  deem  proper.” 

All  in  one  form  or  another  secure  the  freedom  of  writing 
and  speaking  opinions,  and  some  add  that  the  truth  of  a  libel 
may  be  given  in  evidence. 

Keaily  all  secuie  the  freedom  of  public  meeting  and  peti- 
tion.  Considering  that  these  are  the  last  rights  likely  to  be 
infringed  by  a  State  government,  it  is  odd  to  find  Florida  in 
her  Constitution  of  1886  providing  that  “  the  people  shall  have 
the  light  to  assemble  together  to  consult  for  the  common  good, 
to  instruct  their  representatives,  and  to  petition  the  legislat¬ 
ure  for  redress  of  grievances,”  and  Kentucky  in  1891  equally 
concerned  to  secure  this  right. 

Many  piovide  that  no  ex  post  f&cto  law,  nor  law  impairing 
the  obligation  of  a  contract,  shall  be  passed  by  the  State  legis¬ 
lature;  and  that  private  property  shall  not  be  taken  by  the 
State  without  just  compensation. 

Many  forbid  the  creation  of  any  title  of  nobility. 

Many  declare  that  the  right  of  citizens  to  bear  arms  shall 
never  be  denied,  a  provision  which  might  be  expected  to  prove 
inconvenient  where  it  was  desired  to  check  the  habit  of  carry¬ 
ing  revolvers.  Tennessee  therefore  (Constitution  of  1870) 
prudently  adds  that  “the  legislature  shall  have  power  to  regu¬ 
late  the  wearing  of  arms,  with  a  view  to  prevent  crime.”  So 
also  Texas,  where  such  a  provision  is  certainly  not  superfluous. 
And  six  others  allow  the  legislature  to  forbid  the  carrying  of 
concealed  weapons. 

Eight  forbid  white  and  coloured  children  to  be  taught  in 
the  same  public  schools,  while  Wyoming  provides  that  no 
distinction  shall  be  made  in  the  public  schools  on  account  of 
sex,  race,  or  colour. 

Many  declare  the  right  of  trial  by  jury  to  be  inviolate,  even 
while  permitting  the  parties  to  waive  it.  Idaho  empowers 
a  jury  in  civil  cases  to  render  a  verdict  by  a  three-fourths 

majority,  and  Wyoming  permits  it  to  consist  of  less  than 
twelve. 

Some  forbid  imprisonment  for  debt,  except  in  case  of  fraud, 
and  secure  the  acceptance  of  reasonable  bail,  except  for  the 
gravest  charges. 

Several  declare  that  “perpetuities  and  monopolies  are  con- 


310 


PART  II 


THE  STATE  GOVERNMENTS 


trary  to  the  genius  of  a  free  State,  and  ought  not  to  be 

allowed.  ”  „  , 

Many  forbid  the  granting  of  any  hereditary  honours,  privi¬ 
leges,  or  emoluments.  .  .  , 

North  Carolina  declares  that  “  as  political  rights  and  privi¬ 
leges  are  not  dependent  upon  or  modified  by  property,  no 
property  qualification  ought  to  affect  the  right  to  vote  or  hold 
office ;  ”  and  also,  “  secret  political  societies  are  dangerous  to 
the  liberties  of  a  free  people,  and  should  not  be  tolerated.” 

Massachusetts  sets  forth,  as  befits  a  Puritan  State,  high 
moral  views :  “  A  frequent  recurrence  to  the  fundamental 
principles  of  the  Constitution,  and  a  constant  adherence  to 
those  of  piety,  justice,  moderation,  temperance,  industry,  and 
frugality,  are  absolutely  necessary  to  preserve  the  advantages 
of  liberty  and  to  maintain  a  free  government.  The  people 
ouo-ht  consequently  to  have  a  particular  attention  to  all  those 
prfnciples  in  the  choice  of  their  officers  and  representatives, 
and  they  have  a  right  to  require  of  their  law-givers  and  magis¬ 
trates  an  exact  and  constant  observance  of  them.” 

South  Dakota  and  Wyoming  provide  that  aliens  shall  have 
the  same  rights  of  property  as  citizens.  Montana  confers 
this  benefit  as  respects  mining  property,  while  Washington 
prohibits  the  ownership  of  land  by  aliens,  except  for  mining 

North  Dakota  (1889)  enacts :  “  Every  citizen  shall  be  free 
to  obtain  employment  wherever  possible,  and  any  person, 
corporation,  or  agent  thereof,  maliciously  interfering  or  hin¬ 
dering  in  any  way  any  citizen  from  obtaining  or  enjoying 
employment  already  obtained  from  any  other  corporation  or 
person,  shall  be  deemed  guilty  of  a  misdemeanour. 

Maryland  (Constitution  of  1867)  declares  that  “a  long  con¬ 
tinuance  in  the  executive  departments  of  power  or  trust  is 
dangerous  to  liberty ;  a  rotation,  therefore,  in  those  departments 
is  one  of  the  best  securities  of  permanent  freedom.”  She  also 
pronounces  all  gifts  for  any  religious  purpose  (except  of  a  piece 
of  land  not  exceeding  five  acres  for  a  place  of  worship,  par¬ 
sonage,  or  burying-ground)  to  be  void  unless  sanctioned  by  t  e 

legislature.  . 

Montana  and  Idaho  declare  the  use  of  lands  for  construct¬ 
ing  reservoirs,  water-courses,  or  ways  for  the  purposes  o 


chap,  xxxvi  CONTENTS  OF  STATE  CONSTITUTIONS 


311 


mining  or  irrigation,  to  be  a  public  use,  subject  to  State  regu¬ 
lation. 

These  instances,  a  few  out  of  many,  may  suffice  to  show 
how  remote  from  the  common  idea  of  a  Bill  of  Eights,  are 
some  of  the  enactments  which  find  a  place  under  that  heading. 
The  constitution-makers  seem  to  have  inserted  here  such  doc¬ 
trines  or  legal  reforms  as  seemed  to  them  matters  of  high 
import  or  of  wide  application,  especially  when  they  could  find 
no  suitable  place  for  them  elsewhere  in  the  instrument. 

Of  the  articles  of  each  State  constitution  which  contain  the 
frame  of  State  government  it  will  be  more  convenient  to  speak 
in  the  chapters  which  describe  the  mechanism  and  character 
of  the  governments  and  administrative  systems  of  the  several 
States.  I  pass  on  therefore  to  what  have  been  classed  as  the 
Miscellaneous  Provisions.  These  are  of  great  interest  as 
revealing  the  spirit  and  tendencies  of  popular  government  in 
America,  the  economic  and  social  condition  of  the  country, 
the  mischiefs  that  have  arisen,  the  remedies  applied  to  these 
mischiefs,  the  ideas  and  beliefs  of  the  people  in  matters  of 
legislation. 

Among  such  provisions  we  find  a  great  deal  of  matter  which 
is  in  no  distinctive  sense  constitutional  law,  but  general  law, 
e.g.  administrative  law,  the  law  of  judicial  procedure,  the 
ordinary  private  law  of  family,  inheritance,  contract,  and  so 
forth;  matter  therefore  which  seems  out  of  place  in  a  consti¬ 
tution  because  fit  to  be  dealt  with  in  ordinary  statutes.  We 
find  minute  provisions  regarding  the  management  and  liabili¬ 
ties  of  banking  companies,  of  railways,  or  of  corporations 
generally ;  regulations  as  to  the  salaries  of  officials,  the  quorum 
of  courts  sitting  in  banco,  the  length  of  time  for  appealing, 
the  method  of  changing  the  venue,  the  publication  of  judicial 
reports;  detailed  arrangements  for  school  boards  and  school 
taxation  (with  rules  regarding  the  separation  of  white  and 
black  children  in  schools),  for  a  department  of  agriculture, 
a  canal  board,  or  a  labour  bureau;  we  find  a  prohibition  of 
lotteries,  of  polygamy,  of  bribery,  of  lobbying,  of  the  granting 
of  liquor  licences,  of  usurious  interest  on  money,  an  abolition 
of  the  distinction  between  sealed  and  unsealed  instruments, 
a  declaration  of  the  extent  of  a  mechanic’s  lien  for  work  done. 
We  even  find  the  method  prescribed  in  which  stationery  and 


312 


THE  STATE  GOVERNMENTS/ 


PART  II 


coals  for  the  use  of  the  legislature  shall  be  contracted  for, 
and  provisions  for  fixing  the  rates  which  may  be  charged 
for  the  storage  of  corn  in  warehouses.  The  framers  of 
these  more  recent  constitutions  have  in  fact  neither  wished 
nor  cared  to  draw  a  line  of  distinction  between  what  is 
proper  for  a  constitution  and  what  ought  to  be  left  to  be 
dealt  with  by  the  State  legislature.  And,  in  the  case  of 
three-fourths  at  least  of  the  States,  no  such  distinction  now , 
in  fact,  exists. 

How  is  this  confusion  to  be  explained?  Four  reasons  may 
be  suggested. 

The  Americans,  like  the  English,  have  no  love  for  scientific 
arrangement.  Although  the  constitutions  have  been  diafted 
by  lawyers,  and  sometimes  by  the  best  lawyers  of  each  Stc^te, 
logical  classification  has  not  been  sought  after.  .  .  \ 

The  people  found  the  enactment  of  a  new  constitution  a 
convenient  opportunity  for  enunciating  doctrines  they  valued 
and  carrying  through  reforms  they  desired.  It  was  a  simplei^ 
and  quicker  method  than  waiting  for  legislative  action,  so, 
when  there  was  a  popular  demand  for  the  establishment  of  an 
institution,  or  for  some  legal  change,  this  was  shovelled  into 
the  new  constitution  and  enacted  accordingly, 

The  peoples  of  the  States  have  come  to  distrust  their 
respective  legislatures.  Hence  they  desire  not  only  to  do  a 
thing  forthwith  and  in  their  own  way  rather  than  leave  it  to 
the  chance  of  legislative  action,  but  to  narrow  as  far  as  they 
conveniently  can  (and  sometimes  farther)  the  sphere  of  the 
legislature. 

There  is  an  unmistakable  wish  in  the  minds  of  the  people 
to  act  directly  rather  than  through  their  representatives  in 
legislation.  The  same  conscious  relish  for  power  which  leads 
some  democracies  to  make  their  representatives  mere  delegates, 
finds  a  further  development  in  passing  by  the  representatives, 
and  setting  the  people  itself  to  make  and  repeal  laws. 

Those  who  have  read  the  chapters  describing  the  growth 
and  development  of  the  Federal  Constitution,  will  naturally 
ask  how  far  the  remarks  there  made  apply  to  the  constitutions 
of  the  several  States. 

These  instruments  have  less  capacity  for  expansion,  whether 
by  interpretation  or  by  usage,  than  the  Constitution  of  the 


chap,  xxxvi  CONTENTS  OF  STATE  CONSTITUTIONS 


313 


United  States:  firstly,  because  they  are  more  easily,  and 
therefore  more  frequently,  amended  or  recast;  secondly,  be- 
cause  they  are  far  longer,  and  go  into  much  more  minute 
detail.  The  Federal  Constitution  is  so  brief  and  general  that 
custom  must  fill  up  what  it  has  left  untouched,  and  judicial 
construction  evolve  the  application  of  its  terms  to  cases  they 
do  not  expressly  deal  with.  But  the  later  State  constitutions 
are  so  full  and  precise  that  they  need  little  in  the  way  of 
expansive  construction,  and  leave  comparatively  little  room 
for  the  action  of  custom. 

The  rules  of  interpretation  are  in  the  main  the  same  as 
those  applied  to  the  Federal  Constitution.  One  important 
difference  must,  however,  be  noted,  springing  from  the  differ¬ 
ent  character  of  the  two  governments.  The  National  gov¬ 
ernment  is  an  artificial  creation,  with  no  powers  except  those 
conferred  by  the  instrument  which  created  it.  A  State  gov¬ 
ernment  is  a  natural  growth,  which  prima  facie  possesses  all 
the  powers  incident  to  any  government  whatever.  Hence,  if 
the  question  arises  whether  a  State  legislature  can  pass  a  law 
on  a  given  subject,  the  presumption  is  that  it  can  do  so :  and 
positive  grounds  must  be  adduced  to  prove  that  it  cannot. 
It  may  be  restrained  by  some  inhibition  either  in  the  Federal 
Constitution,  or  in  the  constitution  of  its  own  State.  But 
such  inhibition  must  be  affirmatively  shown  to  have  been 
imposed,  or,  to  put  the  same  point  in  other  words,  a  State 
constitution  is  held  to  be,  not  a  document  conferring  defined 
and  specified  powers  on  the  legislature,  but  one  regulating 
and  limiting  that  general  authority  which  the  representatives 
of  the  people  enjoy  ipso  jure  by  their  organization  into  a 
legislative  body. 

“  It  has  never  been  questioned  that  the  American  legislatures 
have  the  same  unlimited  power  in  regard  to  legislation  which 
resides  in  the  British  Parliament,  except  where  they  are 
restrained  by  written  constitutions.  That  must  be  conceded 
to  be  a  fundamental  principle  in  the  political  organization  of 
tne  American  States.  We  cannot  well  comprehend  how,  upon 
principle,  it  could  be  otherwise.  The  people  must,  of  course, 
possess  all  legislative  power  originally.  They  have  committed 
this  in  the  most  general  and  unlimited  manner  to  the  several 
State  legislatures,  saving  only  such  restrictions  as  are  imposed 


314 


THE  STATE  GOVERNMENTS 


PART  II 


by  the  Constitution  of  the  United  States  or  of  the  particular 
State  in  question.’7 1 

“  The  people,  in  framing  the  constitution,  committed  to  the 
legislature  the  whole  law-making  powers  of  the  State  which 
they  did  not  expressly  or  impliedly  withhold.  Plenary  power 
in  the  legislature,  for  all  purposes  of  civil  government,  is  the 
rule.  A  prohibition  to  exercise  a  particular  power  is  an 
exception.”2 

It  must  not,  however,  be  supposed  from  these  dicta  that 
even  if  the  States  were  independent  commonwealths,  the 
Federal  government  having  disappeared,  their  legislatures 
would  enjoy  anything  approaching  the  omnipotence  of  the 
British  Parliament,  “whose  power  and  jurisdiction  is,”  says 
Sir  Edward  Coke,  “  so  transcendent  and  absolute  that  it  can¬ 
not  be  confined,  either  for  persons  or  causes,  within  any 
bounds.”  “All  mischiefs  and  grievances,”  adds  Blackstone, 
“  operations  and  remedies  that  transcend  the  ordinary  course 
of  the  laws  are  within  the  reach  of  this  extraordinary  tribu¬ 
nal.”  Parliament  being  absolutely  sovereign,  can  command, 
or  extinguish  and  swallow  up  the  executive  and  the  judiciary, 
appropriating  to  itself  their  functions.  But  in  America,  a 
legislature  is  a  legislature  and  nothing  more.  The  same 
instrument  which  creates  it  creates  also  the  executive  gov¬ 
ernor  and  the  judges.  They  hold  by  a  title  as  good  as  its 
own.  If  the  legislature  should  pass  a  la\V  depriving  the 
governor  of  an  executive  function  conferred  by  the  constitu 
tion,  that  law  would  be  void.  If  the  legislature  attempted  to 
interfere  with  the  jurisdiction  of  the  courts,  their  action  would 
be  even  more  palpably  illegal  and  ineffectual.3 

The  executive  and  legislative  departments  of  a  State  govern¬ 
ment  have  of  course  the  right  and  duty  of  acting  in  the  first 
instance  on  their  view  of  the  meaning  of  the  constitution. 

1  Red  field,  Chief-Justice,  in  27  Vermont  Reports,  p.  142,  quoted  by  Cooley, 

Constit.  Limit.,  p.  108. 

2  Denio,  Chief-Justice,  in  15  N.  Y.  Reports,  p.  543,  quoted  ibid.  p.  107. 

3  It  has,  for  instance,  been  heldAhat  a  State  legislature  cannot  empower 
election  boards  to  decide  whether  a  person  has  by  duelling  forfeited  his  right 
to  vote  or  hold  office,  this  inquiry  being  judicial  and  proper  only  for  the  regu¬ 
lar  tribunals  of  the  State. —Cooley,  Constit.  Limit.,  p.  112.  Acts  passed  by 
legislatures  affecting  some  judicial  decision  already  given,  have  repeatedly 
been  held  void  by  the  courts.  They  would  be  doubly  void  as  also  transgress¬ 
ing  the  Federal  Constitution. 


chap,  xxxvi  CONTENTS  OF  STATE  CONSTITUTIONS 


315 


But  the  ultimate  expounder  of  that  meaning  is  the  judiciary; 
and  when  the  courts  of  a  State  have  solemnly  declared  the 
true  construction  of  any  provision  of  the  constitution,  all  per¬ 
sons  are  bound  to  regulate  their  conduct  accordingly. 

It  is  a  well-established  rule  that  the  judges  will  always  lean 
in  favour  of  the  validity  of  a  legislative  act;  that  if  there  be 
a  reasonable  doubt  as  to  the  constitutionality  of  a  statute  they 
will  solve  that  doubt  in  favour  of  the  statute;  that  where  the 
legislature  has  been  left  a  discretion  they  will  assume  the 
discretion  to  have  been  wisely  exercised;  that  where  the  con 
struction  of  a  statute  is  doubtful,  they  will  adopt  such  construc¬ 
tion  as  will  harmonize  with  the  constitution,  and  enable  it  to 
take  effect.  So  it  has  been  well  observed  that  a  man  might 
with  perfect  consistency  argue  as  a  member  of  a  legislature 
against  a  bill  on  the  ground  that  it  is  unconstitutional,  and 
after  having  been  appointed  a  judge,  might  in  his  judicial 
capacity  sustain  its  constitutionality.  Judges  must  not  inquire 
into  the  motives  of  the  legislature,  nor  refuse  to  apply  an  act 
because  they  may  suspect  that  it  was  obtained  by  fraud  or 
corruption,  still  less  because  they  hold  it  to  be  opposed  to 
justice  and  sound  policy.  “A  court  cannot  declare  a  statute 
unconstitutional  and  void  solely  on  the  ground  of  unjust  and 
oppressive  provisions,  or  because  it  is  supposed  to  violate  the 
natural,  social,  or  political  rights  of  the  citizen,  unless  it  can 
be  shown  that  such  injustice  is  prohibited,  or  such  rights 
guaranteed  or  protected,  by  the  Constitution.1  .  .  .  But  when 
a  statute  is  adjudged  to  be  unconstitutional,  it  is  as  if  it  had 


1  This  was  not  always  admitted ;  just  as  in  England  it  was  at  one  time  held 
that  natural  justice  and  equity  were  above  acts  of  Parliament.  So  in  the  case 
of  Gardner  v.  The  Village  of  Newburg  (Johnson’s  Chancery  Reports,  N.  Y. 
162),  the  New  York  legislature  had  authorized  the  village  to  supply  itself  with 
water  from  a  stream,  but  had  made  no  provision  for  indemnifying  the  owners 
of  lands  through  which  the  stream  flowed  for  the  injury  they  must  suffer  from 
the  diversion  of  the  water.  The  Constitution  of  New  York  at  that  time  con¬ 
tained  no  provision  prohibiting  the  taking  of  private  property  for  public  use 
without  compensation ;  notwithstanding  this,  Chancellor  Kent  restrained  the 
village  from  proceeding  upon  the  broad  (general  principle  which  he  found  in 
Magna  Charta,  in  a  statutory  Bill  of  Rights,  which  of  course  could  not  control 
the  legislature,  and  in  Grotius,  Puffendorf,  and  Bynkershoek.  (I  owe  this 
reference  to  the  kindness  of  Mr.  Theodore  Bacon.) 

As  the  doctrine  suited  in  the  text  has  been  doubted  by  some  critics,  I  may 
now  (Sept.  1892)  refer  for  further  confirmation  of  it  to  Dash  v.  Van  Kleech,  7 
Johns.  477  (words  of  Chancellor  Kent),  and  People  v.  Gillson,  109  N.  Y.  398. 


316 


THE  STATE  GOVERNMENTS 


PART  n 


never  been.  Eights  cannot  be  built  up  under  iTfcontracts 
which  depend  upon  it  for  their  consideration  are  void;  it  con¬ 
stitutes  a  protection  to  no  one  who  has  acted  under  it;  and  no 
one  can  be  punished  for  having  refused  obedience  to  it  before 
the  decision  was  made.  And  what  is  true  oY  an  act  void  in 
toto,  is  true  also  as  to  any  part  of  an  act  which  is  found  to  be 
unconstitutional,  and  which  consequently  is  to  be  regarded  as 
having  never  at  any  time  been  possessed  of  legal  force.” 


CHAPTER  XXXVII 


THE  DEVELOPMENT  OF  STATE  CONSTITUTIONS 

Three  periods  may  be  distinguished  in  the  development 
of  State  government  as  set  forth  in  the  constitutions,  each 
period  marked  by  an  increase  in  the  length  and  minuteness 
of  those  instruments. 

The  first  period  covers  about  thirty  years  from  1776  down¬ 
wards,  and  includes-  the  earlier  constitutions  of  the  original 
thirteen  States,  as  well  as  of  Kentucky,  Vermont,  Tennessee, 
and  Ohio. 

Most  of  these  constitutions  were  framed  under  the  impres¬ 
sions  of  the  Revolutionary  War.  They  manifest  a  dread  of 
executive  power  and  of  military  power,  together  with  a  dis¬ 
position  to  leave  everything  to  the  legislature,  as  being  the 
authority  directly  springing  from  the  people.  The  election  of 
a  State  governor  is  in  most  States  vested  in  the  legislature. 
He  is  nominally  assisted,  but  in  reality  checked,  by  a  coun¬ 
cil  not  of  his  own  choosing.  He  has  not  (except  in  Massa¬ 
chusetts)  a  veto  on  the  acts  of  the  legislature.1  He  has  not, 
like  the  royal  governors  of  colonial  days,  the  right  of  adjourn¬ 
ing  or  dissolving  it.  The  idea  of  giving  power  to  the  people 
directly  has  scarcely  appeared,  because  the  legislature  is  con¬ 
ceived  as  the  natural  and  necessary  organ  of  popular  govern¬ 
ment,  much  as  the  House  of  Commons  is  in  England.  And 
hence  many  of  these  early  constitutions  consist  of  little  be¬ 
yond  an  elaborate  Bill  of  Rights  and  a  comparatively  simple 
outline  of  a  frame  of  government,  establishing  a  representative 
legislature,  with  a  few  executive  officers  and  courts  of  justice 
carefully  separated  therefrom. 

The  second  period  covers  the  first  half  of  the  present  cen- 

1In  New  York  a  veto  on  the  acts  of  the  legislature  was  by  the  first  Consti¬ 
tution  vested  in  the  government  and  judges  of  the  highest  State  court,  acting 
together. 


317 


318 


TIIE  STATE  GOVERNMENTS 


PART  II 


tury  down  to  the  time  when  the  intensity  of  the  party  struggles 
over  slavery  (1850-60)  interrupted  to  some  extent  the  natural 
process  of  State  development.  It  is  a  period  of  the  democ¬ 
ratization  of  all  institutions,  a  democratization  due  not  only 
to  causes  native  to  American  soil,  such  as  the  supremacy  in 
politics  of  the  generation  who  had  been  boys  during  the  Revo¬ 
lutionary  War,  but  to  the  influence  upon  the  generation  which 
had  then  come  to  manhood  of  French  republican  ideas,  an 
influence  which  declined  after  1805  and  ended  with  1851,  since 
which  time  French  examples  and  ideas  have  counted  for  very 
little.  Such  provisions  for  the  maintenance  of  religious  insti¬ 
tutions  by  the  State  as  had  continued  to  exist  are  now  swept 
away.  rFhe  principle  becomes  established  (in  the  North  and 
West)  that  constitutions  must  be  directly  enacted  by  popular 
vote.  The  choice  of  a  governor  is  taken  from  the  legislature, 
to  be  given  to  the  people.  Property  qualifications  are  abol¬ 
ished,  and  a  suffrage  practically  universal,  except  that  it  often 
excludes  free  persons  of  colour,  is  introduced.  Even  the 
judges  are  not  spared.  Many  constitutions  shorten  their 
term,  and  direct  them  to  be  chosen  by  popular  vote.  The 
State  has  emerged  from  the  English  conception  of  a  commu¬ 
nity  acting  through  a  ruling  legislature,  for  the  legislature 
begins  to  be  regarded  as  being  only  a  body  of  agents  exercis¬ 
ing  delegated  and  restricted  powers,,  and  obliged  to  recur  to 
the  sovereign  people  (by  asking  for  a  constitutional  amend¬ 
ment)  when  it  seeks  to  extend  these  powers  in  any  particular 
direction.  The  increasing  length  of  the  constitutions  during 
this  half  century  shows  how  the  range  of  the  popular  vote 
has  extended,  for  these  documents  now  contain  a  mass  of  ordi¬ 
nary  law  on  matters  which  in  the  early  days  would  have  been 
left  to  the  legislatures. 

In  the  third  period,  which  begins  from  about  the  time  of  the 
Civil  War,  a  slight  reaction  may  be  discerned,  not  against  pop¬ 
ular  sovereignty,  which  is  stronger  than  ever,  but  in  the  ten¬ 
dency  to  strengthen  the  executive  and  judicial  departments. 
The  governor  had  begun  to  receive  in  the  second  period,  and 
has  now  in  every  State  but  four,  a  veto  on  the  acts  of  the  leg¬ 
islature.  His  tenure  of  office  has  been  generally  lengthened ; 
the  restrictions  on  his  re-eligibility  generally  removed.  In 
many  States  the  judges  have  been  granted  larger  salaries,  and 


chap,  xxxvii  DEVELOPMENT  OF  STATE  CONSTITUTIONS  319 


their  terms  of  office  lengthened.  Some  constitutions  have  even 
transferred  judicial  appointments  from  the  vote  of  the  people 
to  the  executive.  But  the  most  notable  change  of  all  has  been 
the  narrowing  of  the  competence  of  the  legislature,  and  the 
fettering  its  action  by  complicated  restrictions.  It  may  seem 
that  to  take  powers  away  from  the  legislature  is  to  give  them 
to  the  people,  and  therefore  another  step  towards  pure  democ¬ 
racy.  But  in  America  this  is  not  so,  because  a  legislature 
always  yields  to  any  popular  clamour,  however  transient, 
while  direct  legislation  by  the  people  involves  delay.  I  Such 
provisions  are  therefore  conservative  in  their  results,  and  are 
really  checks  imposed  by  the  citizens  upon  themselves. 

Taking  the  newer,  and  especially  the  Western  and  Southern 
Constitutions,  and  remembering  that  each  is  the  work  of  an 
absolutely  independent  body,  which  (subject  to  the  Federal 
Constitution)  can  organize  its  government  and  shape  its  law 
in  any  way  it  pleases,  so  as  to  suit  its  peculiar  conditions  and 
reflect  the  character  of  its  population,  one  is  surprised  to  find 
how  similar  these  newer  instruments  are.  There  is  endless 
variety  in  details,  but  a  singular  agreement  in  essentials.  The 
influences  at  work,  the  tendencies  which  the  constitutions  of 
the  last  forty  years  reveal,  are  evidently  the  same  over  the 
whole  Union.  What  are  the  chief  of  those  tendencies  ?  One 
is  for  the  constitutions  to  grow  longer.  The  new  constitutions 
are  longer,  not  only  because  new  topics  are  taken  up  and  dealt 
with,  but  because  the  old  topics  are  handled  in  far  greater 
detail.  Such  matters  as  education,  ordinary  private  law,  rail¬ 
roads,  State  and  municipal  indebtedness,  were  either  untouched 
or  lightly  touched  in  the  earlier  instruments.  The  provisions 
regarding  the  judiciary  and  the  legislature,  particularly  those 
restricting  the  powei?  of  the  latter,  have  grown  far  more  mi¬ 
nute  of  late  years,  as  abuses  of  power  became  more  frequent, 
and  the  respect  for  legislative  authority  less.  As  the  powers 
of  a  State  legislature  are  prima  facie  unlimited,  these  bodies 
can  be  restrained  only  by  enumerating  the  matters  withdrawn 
from  their  competence,  and  the  list  grows  always  ampler.  The 
time  might  almost  seem  to  have  come  for  prescribing  that, 
like  Congress,  they  should  be  entitled  to  legislate  on  certain 
enumerated  subjects  only,  and  be  always  required  to  establish 
affirmatively  their  competence  to  deal  with  any  given  topic. 


320 


THE  STATE  GOVERNMENTS 


PART  II 


I  have  already  referred  to  the  progress  which  the  newer  con¬ 
stitutions  show  towards  more  democratic  arrangements,  dhe 
suffrage  is  now  in  almost  every  State  enjoyed  by  all  .adult 
males.  Citizenship  is  quickly  and  easily  accorded  to  immi¬ 
grants.  And,  most  significant  of  all,  the  superior  judges,  who 
were  formerly  named  by  the  governor,  or  chosen  by  the  legis¬ 
lature,  and  who  held  office  during  good  behaviour,  are  now  in 
most  States  elected  by  the  people  for  fixed  terms  of  years.  I 
do  not  ignore  the  strongly  marked  democratic  character  of 
even  the  first  set  of  constitutions,  formed  at  and  just  aftei  the 
Revolution ;  but  that  character  manifested  itself  chiefly  in  neg¬ 
ative  provisions,  i.e.  in  forbidding  exercises  of  power  by  the 
executive,  in  securing  full  civil  equality,  and  the  primordial 
rights  of  the  citizen.  The  new  democratic  spirit  is  positive 
as  well  as  negative.  It  refers  everything  to  the  direct  arbitra¬ 
ment  of  the  people.  It  calls  their  will  into  constant  activity, 
sometimes  by  the  enactment  of  laws  on  various  subjects  in  the 
constitution,  sometimes  by  prescribing  to  the  legislature  the 
purposes  which  legislation  is  to  aim  at.  Even  the  tendency 
to  support  the  executive  against  the  legislature  is  evidence  not 
so  much  of  respect  for  authority  as  of  the  confidence  of  the 
people  that  the  executive  will  be  the  servant  of  popular  opin¬ 
ion,  prepared  at  its  bidding  to  restrain  that  other  servant  — 
the  legislature — who  is  less  trusted,  because  harder  to  fix  with 
responsibility  for  misdoing. 

That  there  are  strong  conservative  tendencies  in  the  United 
States  is  a  doctrine  whose  truth  will  be  illustrated  later  on. 
Meanwhile  it  is  worth  while  to  ask  how  far  the  history  of 
State  constitutions  confirms  the  current  notion  that  democrat 
cies  are  fond  of  change.  The  answer  is  instructive,  because 
it  shows  how  flimsy  are  the  generalizations  which  men  often 
indulge  in  when  discussing  forms  of  government,  as  if  all  com¬ 
munities  with  similar  forms  of  government  behaved  in  the 
same  way.  All  the  States  of  the  Union  are  democracies,  and 
democracies  of  nearly  the  same  type.  Yet  while  some  change 
their  constitutions  frequently,  others  scarcely  change  theirs  at 
all.  Let  me  recall  the  reader’s  mind  to  the  distinction  already 
drawn  between  the  older  or  New  England  type  and  the  newer 
type,  which  we  find  in  the  Southern  as  well  as  the  Western 
States.  It  is  among  the  latter  that  changes  are  frequent. 


chap,  xxxvii  DEVELOPMENT  OF  STATE  CONSTITUTIONS  321 


Of  the  causes  of  these  differences  I  will  now  touch  on  two 
only.  One  is  the  attachment  which  in  an  old  and  historic,  a 
civilized  and  well-educated  community,  binds  the  people  to 
their  accustomed  usages  and  forms  of  government.  It  is  the 
newer  States,  without  a  past  to  revere,  with  a  population  un¬ 
disciplined  or  fluctuating,  that  are  prone  to  change.  In  well- 
settled  commonwealths  the  longer  a  constitution  has  stood 
untouched,  the  longer  it  is  likely  to  stand,  because  the  force 
of  habit  is  on  its  side,  because  an  intelligent  people  learns  to 
value  the  stability  of  its  institutions,  and  to  love  that  which 
it  is  proud  of  having  created. 

The  other  cause  is  the  difference  between  the  swiftness  with 
which  economic  and  social  changes  move  in  different  parts  of 
the  country.  They  are  the  most  constant  sources  of  political 
change,  and  find  their  natural  expression  in  alterations  of  the 
constitution.  Such  changes  have  been  least  swift  and  least 
sudden  in  the  New  England  and  Middle  States,  though  in  some 
of  the  latter  the  growth  of  great  cities,  such  as  New  York  and 
Philadelphia,  has  induced  them,  and  induced  therewith  a  ten¬ 
dency  to  amend  the  constitutions  so  as  to  meet  new  conditions 
and  check  new  evils.  They  have  been  most  marked  in  regions 
where  population  and  wealth  have  grown  with  unexampled 
speed,  and  in  those  where  the  extinction  of  slavery  has  changed 
the  industrial  basis  of  society.  Here  lies  the  explanation  of 
the  otherwise  singular  fact  that  several  of  the  original  States, 
such  as  Virginia  and  Georgia,  have  run  through  many  con¬ 
stitutions.  These  whilom  slave  States  have  not  only  changed 
greatly  but  changed  suddenly  :  society,  as  well  as  political  life, 
was  dislocated  by  the  Civil  War,  and  has  had  to  make  more 
than  one  effort  to  set  itself  right. 

The  constitutions  witness  to  a  singular  distrust  by  the  peo¬ 
ple  of  its  own  agents  and  officers,  not  only  of  the  legislatures 
but  also  of  local  authorities,  as  well  rural  as  urban,  whose 
powers  of  borrowing  or  undertaking  public  works  are  strictly 
limited. 

They  witness  also  to  a  jealousy  of  the  Federal  government. 
By  most  constitutions  a  Federal  official  is  made  incapable,  not 
only  of  State  office,  but  of  being  a  member  of  a  State  legis¬ 
lature.  These  prohibitions  are  almost  the  only  references  to 
the  National  government  to  be  found  in  the  State  constitutions, 


322 


THE  STATE  GOVERNMENTS 


PART  II 


which  so  far  as  their  terms  go  might  belong  to  independent 
communities.  They  usually  talk  of  corporations  belonging  to 
other  States  as  “foreign,”  and  sometimes  try  to  impose  special 
burdens  on  them. 

They  show  a  wholesome  anxiety  to  protect  and  safeguard 
private  property  in  every  way.  The  people’s  consciousness  of 
sovereignty  has  not  used  the  opportunity  which  the  enact¬ 
ment  of  a  constitution  gives  to  override  private  rights :  there 
is  rather  a  desire  to  secure  such  rights  from  any  encroach¬ 
ment  by  the  legislature:  witness  the  frequent  provisions 
against  the  taking  of  property  without  due  compensation,  and 
against  the  passing  of  private  or  personal  statutes  which  could 
unfairly  affect  individuals.  The  only  exceptions  to  this  rule 
are  to  be  found  in  the  case  of  anything  approaching  a  monop¬ 
oly,  and  in  the  case  of  wealthy  corporations. 

The  extension  of  the  sphere  of  State  interference,  with  the 
corresponding  departure  from  the  doctrine  of  ladssez  faire,  is 
a  question  so  large  and  so  interesting  as  to  require  a  chapter 
to  itself  later.  Here  it  may  suffice  to  remark,  that  some  de¬ 
partments  of  governmental  action,  which  on  the  continent  of 
Europe  have  long  been  handled  by  the  State,  are  in  America 
still  left  to  private  enterprise.  Eor  instance,  the  States  neither 
own  nor  manage  railways,  or  telegraphs,  or  mines,  or  forests, 
and  they  sell  their  public  lands  instead  of  working  them. 
There  is,  nevertheless,  visible  in  recent  constitutions  a  strong 
tendency  to  extend  the  scope  of  public  administrative  activity. 
Most  of  the  newer  instruments  establish  not  only  railroad  com¬ 
missions,  intended  to  control  the  roads  in  the  interest  of  the 
public,  but  also  bureaux  of  agriculture,  labour  offices,  mining 
commissioners,  land  registration  offices,  dairy  commissioners, 
insurance  commissioners,  and  agricultural  or  mining  colleges. 
And  a  reference  to  the  statutes  passed  within  the  last  few 
years  in  the  Wbstern  States  will  show  that  more  is  being  done 
in  this  direction  by  the  legislatures,  as  exponents  of  popular 
sentiment,  than  could  be  gathered  from  the  older  among  the 
Western  constitutions. 

A  spirit  of  humanity  and  tenderness  for  suffering,  very  char¬ 
acteristic  of  the  American  people,  appears  in  the  directions 
which  many  constitutions  contain  for  the  establishment  of 
charitable  and  reformatory  institutions,  and  for  legislation  to 


chap,  xxxvii  DEVELOPMENT  OF  STATE  CONSTITUTIONS  323 


protect  children.  Sometimes  the  legislature  is  enjoined  to  pro- 
a  ide  that  the  prisons  are  made  comfortable ;  or  directions  are 
gi\  en  that  homes  or  farms  be  provided  as  asylums  for  the 
aged  and  unfortunate.  On  the  other  hand,  this  tenderness  is 
qualified  by  the  judicious  severity  which  in  most  States  de¬ 
bars  persons  convicted  of  crime  from  the  electoral  franchise 
Lotteries  are  stringently  prohibited  by  some  of  the  recent 
constitutions. 

In  the  older  Northern  constitutions,  and  in  nearly  all  the 
more  recent  constitutions  of  all  the  States,  ample  provision 
is  made  for  the  creation  and  maintenance  of  schools.  Even 
universities  are  the  object  of  popular  zeal,  though  a  zeal  not 
always  according  to  knowledge.  Most  Western  constitutions 
direct  their  establishment  and  support  from  public  funds  or 
land  grants. 

Although  a  constitution  is  the  fundamental  and  supreme 
law  of  the  State,  one  must  not  conclude  that  its  provisions  are 
any  better  observed  and  enforced  than  those  of  an  ordinary 
statute.  There  is  sometimes  reason  to  suspect  that  when  an 
offence  is  thought  worthy  of  being  specially  mentioned  in  a 
constitution,  this  happens  because  it  is  specially  frequent, 
and  because  men  fear  that  the  legislature  may  shrink  from 
applying  due  severity  to  repress  it,  or  the  public  prosecuting 
authorities  may  wink  at  it.  Certain  it  is  that  in  many  in¬ 
stances  the  penalties  threatened  by  constitutions  fail  to  attain 
their  object.  For  instance,  the  constitutions  of  most  of  the 
Southern  States  have  for  many  years  past  declared  duellists, 
and  even  persons  who  abet  a  duel  by  carrying  a  challenge, 
incapable  of  office,  or  of  sitting  in  the  legislature.  Yet  the 
practice  of  private  warfare  does  not  seem  to  have  declined 

in  Mississippi,  Texas,  or  Arkansas,  where  these  provisions 
exist. 


CHAPTER  XXXVIII 


DIRECT  LEGISLATION  BY  THE  PEOPLE 

* 

In  the  United  States  the  conception  that  the  people  (i.e.  the 
citizens  at  large)  are  and  ought  of  right  to  be  the  supreme 
legislators  has  taken  the  form  of  legislation  by  enacting  or 
amending  a  constitution.  Instead  of,  like  the  Swiss,  submit¬ 
ting  ordinary  laws  to  the  voters  after  they  have  passed  the 
legislature,  the  Americans  take  subjects  which  belong  to  ordi¬ 
nary  legislation  out  of  the  category  of  statutes,  place  them 
in  the  Constitution,  and  then  handle  them  as  parts  of  this 
fundamental  instrument.  They  are  not  called  laws ;  but  laws 
they  are  to  all  intents  and  purposes,  differing  from  statutes 
only  in  being  enacted  by  an  authority  which  is  not  a  constant 
but  an  occasional  body,  called  into  action  only  when  a  conven¬ 
tion  or  a  legislature  lays  propositions  before  it. 

This  system  sprang  from  the  fact  that  the  constitutions  of 
the  colonies  having  been  given  to  them  by  an  external  author¬ 
ity  superior  to  the  colonial  legislature,  the  people  of  each 
State,  seeing  that  they  could  no  longer  obtain  changes  in  their 
constitution  from  Britain,  assumed  to  themselves  the  right 
and  duty  of  remodelling  it ;  putting  the  collective  citizendom 
of  the  State  into  the  place  of  the  British  Crown  as  sovereign. 
The  business  of  creating  or  remodelling  an  independent  com¬ 
monwealth  was  to  their  thinking  too  great  a  matter  to  be  left 
to  the  ordinary  organs  of  State  life.  This  feeling,  which  had 
begun  to  grow  from  1776  onwards,  was  much  strengthened  by 
the  manner  in  which  the  Federal  Constitution  was  enacted  in 
1788  by  State  conventions.  It  seemed  to  have  thus  received 
a  specially  solemn  ratification;  and  even  the  Federal  legis¬ 
lature,  which  henceforth  was  the  centre  of  National  politics, 
was  placed  far  beneath  the  document  which  expressed  the  will 
of  the  people  as  a  whole. 

As  the  Republic  went  on  working  out  both  in  theory  and  in 

324 


chap,  xxxviii  DIRECT  LEGISLATION  BY  THE  PEOPLE 


325 


practice  those  conceptions  of  democracy  and  popular  sover¬ 
eignty  which  had  been  only  vaguely  apprehended  when  enun¬ 
ciated  at  the  Revolution,  the  faith  of  the  average  man  in 
himself  became  stronger,  his  love  of  equality  greater,  his 
desire,  not  only  to  rule,  but  to  rule  directly  in  his  own  proper 
person,  more  constant.  These  sentiments  would  have  told 
still  further  upon  State  governments  had  they  not  found  large 
scope  in  local  government.  However,  even  in  State  affairs 
they  made  it  an  article  of  faith  that  no  constitution  could 
be  enacted  save  by  the  direct  vote  of  the  citizens ;  and  they 
inclined  the  citizens  to  seize  such  chances  as  occurred  of 
making  laws  for  themselves  in  their  own  way.  Concurrently 
with  the  growth  of  these  tendencies  there  had  been  a  decline 
in  the  quality  of  the  State  legislatures,  and  of  the  legislation 
which  they  turned  out.  They  were  regarded  with  less  respect ; 
they  inspired  less  confidence.  Hence  the  people  had  the 
further  excuse  for  superseding  the  legislature,  that  they  might 
reasonably  fear  it  would  neglect  or  spoil  the  work  they  desired 
to  see  done. .  And  instead  of  being  stimulated  by  this  distrust 
to  mend  their  ways  and  recover  their  former  powers,  the  State 
legislatures  fell  in  with  the  tendency,  and  promoted  their  own 
supersession.  The  chief  interest  of  their  members,  as  will  be 
explained  later,  is  in  the  passing  of  special  or  local  acts,  not 
of  general  public  legislation.  They  are  extremely  timid,  easily 
swayed  by  any  active  section  of  opinion,  and  afraid  to  stir 
when  placed  between  the  opposite  fires  of  two  such  sections. 
Hence  they  welcomed  the  direct  intervention  of  the  people  as 
relieving  them  of  embarrassing  problems. 

The  methods  by  which  legislative  power  is  directly  vested  in 
the  American  voters  are  two.  One  is  the  enactment  or  amend¬ 
ment  by  them  of  a  constitution. 

The  other  method  is  the  submission  to  popular  vote,  pursu¬ 
ant  to  the  provisions  of  the  Constitution,  of  a  proposal  or  pro¬ 
posals  therein  specified.  If  such  a  proposal  has  been  first 
passed  by  the  legislature,  we  have  here  also  an  instance  of  a 
referendum  in  the  Swiss  sense. 

The  same  principle  of  popular  vote  has  been  widely  applied 
to  local  as  well  as  to  State  government.  Many  recent  consti¬ 
tutions  provide  that  the  approval  of  the  people  at  the  polls 
shall  be  needed  in  order  to  validate  a  decision  of  the  city,  or 


326 


THE  STATE  GOVERNMENTS 


PART  II 


county,  or  school  district,  or  township  authority  regarding  bor¬ 
rowing,  or  taxing,  or  lending  public  funds  to  some  enteipiise 
it  may  be  desired  to  assist.  Licensing  questions  are  usually 
left  to  popular  determination  alone,  with  no  interference  by 
the  local  representative  authority. 

What  are  the  practical  advantages  of  this  plan  of  direct 
legislation  by  the  people  ?  Its  demerits  are  obvious.  Besides 
those  I  have  already  stated,  it  tends  to  lower  the  authority  and 
sense  of  responsibility  in  the  legislature  ;  and  it  refers  matters 
needing  much  elucidation  by  debate  to  the  determination  of 
those  who  cannot,  on  account  of  their  numbers,  meet  together 
for  discussion,  and  many  of  whom  may  have  never  thought 
about  the  matter. 

But  the  improvement  of  the  legislatures  is  just  what  the 
Americans  despair  of,  or,  as  they  prefer  to  say,  have  not 
time  to  attend  to.  Hence  they  fall  back  on  the  direct  popular 
vote  as  the  best  course  available  under  the  circumstances  of 
the  case,  and  in  such  a  world  as  the  present.  They  do  not 
claim  that  it  has  any  great  educative  effect  on  the  people. 
But  they  remark  with  truth  that  the  mass  of  the  people  are 
equal  in  intelligence  and  character  to  the  average  State  legis¬ 
lator,  and  are  exposed  to  fewer  temptations.  Nor  should  it 
be  forgotten  that  in  a  country  where  law  depends  for  its  force 
on  the  consent  of  the  governed,  it  is  eminently  desirable  that 
law  should  not  outrun  popular  sentiment,  but  have  the  whole 
weight  of  the  people’s  deliverance  behind  it.1 

If  the  practice  of  recasting  or  amending  State  constitutions 
were  to  grow  common,  one  of  the  advantages  of  direct  legis¬ 
lation  by  the  people  would  disappear,  for  the  sense  of  per¬ 
manence  would  be  gone,  and  the  same  mutability  which  is 
now  possible  in  ordinary  statutes  would  become  possible  in  the 
provisions  of  the  fundamental  law.  But  this  fault  of  small 
democracies,  especially  when  ruled  by  primary  assemblies,  is 
unlikely  to  recur  in  large  democracies,  such  as  most  States 
have  now  become,  nor  does  it  seem  to  be  on  the  increase  among 

1  In  the  case  of  local  option  there  is  the  further  argument  that  to  commit 
the  question  of  licences  to  a  local  representative  is  virtually  to  make  the  elec¬ 
tion  of  that  authority  turn  upon  this  single  question,  and  that  there  is  an  ad¬ 
vantage  in  making  a  restriction  on  the  freedom  of  the  individual  issue  directly 
from  the  vote  of  the  people,  who  may  feel  themselves  doubly  bound  to  enforce 
what  they  have  directly  enacted. 


chap,  xxxviii  DIRECT  LEGISLATION  BY  THE  PEOPLE  327 


them.  Reference  to  the  people,  therefore,  acts  as  a  conserva¬ 
tive  force ;  that  is  to  say,  it  is  a  conservative  method  as  com¬ 
pared  with  action  by  the  legislature. 

This  method  of  legislation  by  means  of  a  constitution  or 
amendments  thereto,  arising  from  sentiments  and  under  con¬ 
ditions  in  many  respects  similar  to  those  which  have  produced 
the  referendum  in  Switzerland,  is  an  interesting  illustration  of 
the  tendency  of  institutions,  like  streams,  to  wear  their  channels 
deeper.  A  historical  accident,  so  to  speak,  suggested  to  the 
Americans  the  subjection  of  their  legislatures  to  a  fundamen¬ 
tal  law,  and  the  invention  has  been  used  for  other  purposes 
far  more  extensively  than  its  creators  foresaw.  It  is  now,  more¬ 
over,  serviceable  in  a  way  which  those  who  first  used  it  did  not 
contemplate,  though  they  are  well  pleased  with  the  result.  It 
acts  as  a  restraint  not  only  on  the  vices  and  follies  of  legisla¬ 
tors,  but  on  the  people  themselves.  Having  solemnly  bound 
themselves  by  their  constitution  to  certain  rules  and  principles, 
the  people  come  to  respect  those  principles.  They  have  parted 
with  powers  which  they  might  be  tempted  in  a  moment  of 
excitement,  or  under  the  pressure  of  suffering,  to  abuse 
through  their  too  pliant  representatives;  and  although  they 
can  resume  these  powers  by  enacting  a  new  constitution  or 
amending  the  old  one,  the  process  of  resumption  requires  time, 
and  involves  steps  which  secure  care  and  deliberation,  while 
allowing  passion  to  cool,  and  the  prospect  of  a  natural  relief 
from  economic  evils  to  appear. 

State  constitutions,  considered  as  laws  drafted  by  a  con¬ 
vention  and  enacted  by  the  people  at  large,  are  better  both  in 
form  and  substance  than  laws  made  by  the  legislature,  because 
they  are  the  work  of  abler,  or  at  any  rate  of  honester,  men, 
acting  under  a  special  commission  which  imposes  special  re¬ 
sponsibilities  on  them.  The  appointment  of  a  constitutional 
convention  excites  general  interest  in  a  State.  Its  functions 
are  weighty,  far  transcending  those  of  the  regular  legislature. 
Hence  some  of  the  best  men  in  the  State  desire  a  seat  in  it, 
and,  in  particular,  eminent  lawyers  become  candidates,  know¬ 
ing  how  much  it  will  affect  the  law  they  practise.  It  is  there¬ 
fore  a  body  superior  in  composition  to  either  the  Senate  or  the 
House  of  a  State.  Its  proceedings  are  followed  with  closer 
attention ;  and  it  is  exempt  from  the  temptations  with  which 


328 


THE  STATE  GOVERNMENTS 


PART  II 


the  power  of  disposing  of  public  funds  bestrews  the  path  of 
ordinary  legislators ;  its  debates  are  more  instructive,  its  con¬ 
clusions  are  more  carefully  weighed,  because  they  cannot  be 
readily  reversed.  Or  if  the  work  of  altering  the  constitution 
is  carried  out  by  a  series  of  amendments,  these  are  likely  to  be 
more  fully  considered  by  the  legislature  than  ordinary  statutes 
would  be,  and  to  be  framed  with  more  regard  to  clearness  and 
precision. 

In  the  interval  between  the  settlement  by  the  convention  of 
its  draft  constitution,  or  by  the  legislature  of  its  draft  amend¬ 
ments,  and  the  putting  of  the  matter  to  the  vote  of  the  people, 
there  is  copious  discussion  in  the  press  and  at  public  meetings, 
so  that  the  citizens  often  go  well  prepared  to  the  polls.  An 
all-pervading  press  does  the  work  which  speeches  did  in  the 
ancient  republics,  and  the  fact  that  constitutions  and  amend¬ 
ments  so  submitted  are  frequently  rejected,  shows  that  the 
people,  whether  they  act  wisely  or  not,  do  not  at  any  rate  sur¬ 
render  themselves  blindly  to  the  judgment  of  a  convention, 
or  obediently  adopt  the  proposals  of  a  legislature. 


CHAPTER  XXXIX 

STATE  GOVERNMENTS  :  THE  LEGISLATURE 

The  similarity  of  the  frame  of  government  in  the  forty-five 
Republics  which  make  up  the  United  States,  a  similarity  which 
appears  the  more  remarkable  when  we  remember  that  each  of 
these  republics  is  independent  and  self-determined  as  respects 
its  fiame  of  government,  is  due  to  the  common  source  whence 
the  governments  flow.  They  are  all  copies,  some  immediate 
some  mediate,  of  ancient  English  institutions,  viz.  chartered  self- 
governing  corporations,  which,  under  the  influence  of  English 
habits,  and  with  the  precedent  of  the  English  parliamentary 
system  before  their  eyes,  developed  into  governments  resem¬ 
bling  that  of  England  in  the  eighteenth  century.  Each  of  the 
thirteen  colonies  had  up  to  1776  been  regulated  by  a  charter 
from  the  British  Crown,  which,  according  to  the  best  and  oldest 
o  all  English  traditions,  allowed  it  the  practical  management 
of  its  own  affairs.  The  charter  contained  a  sort  of  skeleton 
constitution,  which  usage  had  clothed  with  nerves,  muscles,  and 
sinews,  till  it  became  a  complete  working  system  of  free  govern¬ 
ment.  There  was  in  each  a  governor,  in  two  colonies  chosen 
by  the  people,  in  the  rest  nominated  by  the  Crown  or  the  “  pro¬ 
prietor  5  ”  there  was  a  legislature ;  there  were  executive  officers 
acting  under  the  governor’s  commission  and  judges  nominated 
by  him  ;  there  were  local  self-governing  communities. 

When  the  thirteen  colonies  became  sovereign  States  at  the 
Revolution,  they  preserved  this  frame  of  government,  substi¬ 
tuting  a  governor  chosen  by  the  State  for  one  appointed  by  the 
Crown.  As  the  new  States  admitted  to  the  Union  after  1789 
successively  formed  their  constitutions  prior  to  their  admission 
to  the  Union,  each  adopted  the  same  scheme,  its  people  imitat¬ 
ing,  as  was  natural,  the  older  commonwealths  whence  they 
came,  and  whose  working  they  understood  and  admired.  They 
were  the  more  inclined  to  do  so  because  they  found  in  the  older 


330 


THE  STATE  GOVERNMENTS 


PART  II 


constitutions  that  sharp  separation  of  the  executive,  legisla¬ 
tive,  and  judicial  powers  which  the  political  philosophy  of 
those  days  taught  them  to  regard  as  essential  to  a  free  gov¬ 
ernment,  and  they  all  take  this  separation  as  theii  point  of 
departure. 

I  have  observed  in  an  earlier  chapter  that  the  influence  on 
the  framers  of  the  Federal  Constitution  of  the  examples  of  free 
government  which  they  found  in  their  several  States,  had  been 
profound.  We  may  sketch  out  a  sort  of  genealogy  of  govern¬ 
ments  as  follows  :  — 

First.  The  English  incorporated  company,  a  self-governing 
body,  with  its  governor,  deputy-governor,  and  assistants  chosen 
by  the  freemen  of  the  company,  and  meeting  in  what  is  called 
the  general  court  or  assembly. 

Next.  The  colonial  government,  which  out  of  this  company 
evolves  a  governor  or  executive  head  and  a  legislature,  consist¬ 
ing  of  representatives  chosen  by  the  citizens  and  meeting  in 
one  or  two  chambers. 

Thirdly.  The  State  government,  which  is  nothing  but  the 
colonial  government  developed  and  somewhat  democratized, 
with  a  governor  chosen  originally  by  the  legislature,  now 
always  by  the  people  at  large,  and  now  in  all  cases  with  a  leg¬ 
islature  of  two  chambers.  From  the  original  thirteen  States 
this  form  has  spread  over  the  Union  and  prevails  in  every 
State. 

Lastly.  The  Federal  government,  modelled  after  the  State 
governments,  with  its  President  chosen,  through  electors,  by 
the  people,  its  two-chambered  legislature,  its  judges  named  by 
the  President. 

Out  of  such  small  beginnings  have  great  things  grown. 

It  would  be  endless  to  describe  the  minor  differences  in  the 
systems  of  the  several  States.  I  will  sketch  the  outlines 
only,  which,  as  already  observed,  are  in  the  main  the  same 
everywhere. 

Every  State  has  — 

,  /  ,  [An  executive  elective  head,  the  governor. 

'  \£.  number  of  other  administrative  officers. 

S'  fyA  legislature  of  two  Houses. 

A  A  system  of  courts  of  justice. 


chap,  xxxix  STATE  GOVERNMENTS  :  THE  LEGISLATURE  331 


Various  subordinate  local  self-governing  communities,  coun¬ 
ties,  cities,  townships,  villages,  school  districts. 

The  governor  and  the  other  chief  officials  are  not  now  chosen 
by  the  legislature,  as  was  the  case  under  most  of  the  older 
State  constitutions,  but  by  the  people.  They  are  as  far  as 
possible  disjoined  from  the  legislature.  Neither  the  governor 
nor  any  other  State  official  can  sit  in  a  State  legislature.  He 
cannot  lead  it.  It  cannot,  except  of  course  by  passing  statutes, 
restrain  him.  There  can  therefore  be  no  question  of  any  gov¬ 
ernment  by  ministers  who  link  the  executive  to  the  legislature 
according  to  the  system  of  the  free  countries  of  modern  Europe 
and  of  the  British  colonies. 

Of  these  several  powers  it  is  best  to  begin  by  describing  the 
legislature,  because  it  is  by  far  the  strongest  and  most  promi¬ 
nent. 

An  American  State  legislature  always  consists  of  two  Houses, 
the  smaller  called  the  Senate,  the  larger  usually  called  the 
House  of  Representatives,  though  in  six  States  it  is  entitled 
“The  Assembly,”  and  in  three  “The  House  of  Delegates.” 
The  origin  of  this  very  interesting  feature  is  to  be  sought 
rather  in  history  than  in  theory.  It  is  due  partly  to  the  fact 
that  in  some  colonies  there  had  existed  a  small  governor’s 
council  in  addition  to  the  popular  representative  body,  partly 
to  a  natural  disposition  to  imitate  the  mother  country  with  its 
Lords  and  Commons,  a  disposition  which  manifested  itself 
both  in  colonial  days  and  when  the  revolting  States  were  giv¬ 
ing  themselves  new  constitutions,  for  up  to  1776  some  of  the 
colonies  had  gone  on  with  a  legislature  of  one  House  only. 
Now,  however,  the  need  for  two  chambers  is  deemed  an  axiom 
of  political  science,  being  based  on  the  belief  that  the  innate 
tendency  of  an  assembly  to  become  hasty,  tyrannical,  and  cor¬ 
rupt,  needs  to  be  checked  by  the  co-existence  of  another  house 
of  equal  authority.  The  Americans  restrain  their  legislatures 
by  dividing  them,  just  as  the  Romans  restrained  their  execu¬ 
tive  by  substituting  two  consuls  for  one  king.  The  only  States 
that  ever  tried  to  do  with  a  single  House  were  Pennsylvania, 
Georgia,  and  Vermont,  all  of  whom  gave  it  up:  the  first  after 
four  years’  experience,  the  second  after  twelve  years,  the  last 
after  fifty  years. 

Both  Houses  are  chosen  by  popular  vote,  generally  in  equal 


332 


THE  STATE  GOVERNMENTS 


PART  II 


electoral  districts,  and  by  the  same  voters,  although  in  a  few 
States  there  are  minor  variations  as  to  modes  of  choice.  Illi¬ 
nois  by  her  Constitution  of  1870,  and  Michigan  by  a  statute  of 
1889,  create  a  system  of  proportional  representation  by  means 
of  the  cumulative  vote ;  i.e.  the  elector  may  cast  as  many  votes 
for  any  one  candidate  as  there  are  representatives  to  be  elected 
in  the  district,  or  may  distribute  his  votes  among  the  candi¬ 
dates. 

The  following  differences  between  the  rules  governing  the 
two  Houses  are  general :  — 

1.  The  senatorial  electoral  districts  are  always  larger, 
usually  twice  or  thrice  as  large  as  the  House  districts,  and  the 
number  of  senators  is,  of  course,  in  the  same  proportion  smaller 
than  that  of  representatives. 

2.  A  senator  is  usually  chosen  for  a  longer  term  than  a  repre¬ 
sentative.  In  twenty-eight  States  he  sits  for  four  years,  in 
one  (New  Jersey)  for  three,  in  thirteen  for  two,  in  two 
(Massachusetts  and  Rhode  Island)  for  one  year  only;  the 
usual  term  of  a  representative  being  two  years. 

3.  In  most  cases  the  Senate,  instead  of  being  elected  all  at 
once  like  the  House,  is  only  partially  renewed,  half  its  members 
going  out  when  their  two,  or  four,  years  have  been  completed, 
and  a  new  half  coming  in.  This  gives  it  a  sense  of  continuity 
which  the  House  wants. 

4.  In  some  States  the  age  at  which  a  man  is  eligible  for  the 
Senate  is  fixed  higher  than  that  for  the  House  of  Representa¬ 
tives  ;  and  in  one  (Delaware)  he  must  own  freehold  land  of  200 
acres  or  real  or  personal  estate  of  the  value  of'  £1000  (Con¬ 
stitution  of  1792,  repeated  in  Constitution  of  1831).  Other  re¬ 
strictions  on  eligibility,  such  as  the  exclusion  of  ^clergymen 
(which  still  exists  in  six  States,  and  is  of  old  standing),  that 

)  of  salaried  public  officials  (which  exists  everywhere),  that  of 
^United  StatelTofficials  and  members  of  Congress,  and  that  of 
j"  persons  not  resident in  the  electoral  district*  (frequent  by  law 
and  practically  universal  by  custom),  apply  to  both  Houses. 
In  some  States  this  last  restriction  goes  so  far  that  a  mem¬ 
ber  ceasing  to  reside  in  the  district  for  which  he  was  elected 
loses  his  seat  ipso  facto. 

Nobody  dreams  of  offering  himself  as  a  candidate  for  a  place 
in  which  he  does  not  reside,  even  in  new  States,  where  it  might 


chap,  xxxix  STATE  GOVERNMENTS :  THE  LEGISLATURE  333 


be  thought  that  there  had  not  been  time  for  local  feeling  to 
spring  up.  Hence  the  educated  and  leisured  residents  of  the 
greater  cities  have  no  chance  of  entering  the  State  legislature 
except  for  the  city  district  wherein  they  dwell ;  and  as  these 
city  districts  are  those  most  likely  to  be  in  the  hands  of  some 
noxious  and  selfish  ring  of  professional  politicians,  the  prospect 
for  such  an  aspirant  is  a  dark  one.  Nothing  more  contributes 
to  make  reform  difficult  than  the  inveterate  habit  of  choosing 
residents  only  as  members.  Suppose  an  able  and  public- 
spirited  man  desiring  to  enter  the  Assembly  or  the  Senate  of 
his  State  and  shame  the  offenders  who  are  degrading  or  plun¬ 
dering  it.  He  may  be  wholly  unable  to  find  a  seat,  because  in 
his  place  of  residence  the  party  opposed  to  his  own  may  hold 
a  permanent  majority,  and  he  will  not  be  even  considered  else¬ 
where.  Suppose  a  group  of  earnest  men  who,  knowing  how 
little  one  man  can  effect,  desire  to  enter  the  legislature  at  the 
same  time  and  work  together.  Such  a  group  can  hardly  arise 
except  in  or  near  a  great  city.  It  cannot  effect  an  entrance, 
because  the  city  has  at  best  very  few  seats  to  be  seized,  and 
the  city  men  cannot  offer  themselves  in  any  other  part  of  the 
State.  That  the  restriction  often  rests  on  custom,  not  on  law, 
makes  the  case  more  serious.  A  law  can  be  repealed,  but  cus¬ 
tom  has  to  be  unlearned ;  the  one  may  be  done  in  a  moment 
of  happy  impulse,  the  other  needs  the  teaching  of  long  experi¬ 
ence  applied  to  receptive  minds. 

The  fact  is,  that  the  Americans  have  ignored  in  all  their 
legislative,  as  in  many  of  their  administrative  arrangements, 
the  differences  of  capacity  between  man  and  man.  They 
underrate  the  difficulties  of  government  and  overrate  the  ca¬ 
pacities  of  the  man  of  common  sense.  Great  are  the  bless¬ 
ings  of  equality ;  but  what  follies  are  committed  in  its  name ! 

The  unfortunate  results  of  this  local  sentiment  have  been 
aggravated  by  the  tendency  to  narrow  the  election  areas,  allot¬ 
ting  one  senator  or  representative  to  each  district.  Under  the 
older  Constitution  of  Connecticut,  for  instance,  the  twelve 
senators  were  elected  out  of  the  whole  State  by  a  popular 
vote.  Now  (amendments  of  a.d.  1828)  the  twenty-four  senators 
are  chosen  by  districts,  and  the  Senate  is  to-day  an  inferior 
body,  because  then  the  best  men  of  the  whole  State  might  be 
chosen,  now  it  is  possible  only  to  get  the  leading  men  of  the 


334 


THE  STATE  GOVERNMENTS 


PART  II 


districts.  In  Massachusetts,  under  the  Constitution  of  1780, 
the  senators  were  chosen  by  districts,  but  a  district  might  re¬ 
turn  as  many  as  six  senators  :  the  assemblymen  were  chosen 
by  towns,1  each  corporate  town  having  at  least  one  representa¬ 
tive,  and  more  in  proportion  to  its  population,  the  proportion 
being  at  the  rate  of  one  additional  member  for  every  275  ratable 
polls.  In  1836  the  scale  of  population  to  representatives  was 
raised,  and  a  plan  prescribed  (too  complicated  to  be  here  set 
forth)  under  which  towns  below  the  population  entitling  them 
to  one  representative  should  have  a  representative  during  a 
certain  number  of  years  out  of  every  ten  years,  the  census  being 
taken  decennially.  Thus  a  small  town  might  send  a  member 
to  the  Assembly  for  five  years  out  of  every  ten,  choosing 
alternate  years,  or  the  first  five,  or  the  last  five,  as  it  pleased. 
Now,  however  (amendments  of  a.d.  1857),  the  State  has  been 
divided  into  forty  senatorial  districts,  each  of  which  returns  one 
senator  only,  and  into  175  Assembly  districts,  returning,  one, 
two,  or,  in  a  few  cases,  three  representatives  each.  The  compo¬ 
sition  of  the  legislature  has  declined  ever  since  this  change  was 
made.  The  area  of  choice  being  smaller,  inferior  men  are 
chosen ;  and  in  the  case  of  the  Assembly  districts  which  re¬ 
turn  one  member,  but  are  composed  of  several  small  towns,  the 
practice  has  grown  up  of  giving  each  town,  its  turn,  so  that  not 
even  the  leading  man  of  the  district,  but  the  leading  man  of 
the  particular  small  community  whose  turn  has  come  round, 
is  chosen  to  sit  in  the  Assembly. 

Universal  manhood  suffrage,  subject  to  certain  disqualifica¬ 
tions  in  respect  of  crime  (including  bribery  and  polygamy) 
and  of  the  receipt  of  poor  law  relief,  which  prevail  in  many 
States  — in  eight  States  no  pauper  can  vote  — is  the  rule  in 
nearly  all  the  States.  Some  of  the  States  give  the  suffrage  to 
women.  A  property  qualification  was  formerly  required  in 
many,  and  lasted  till  1888  in  Rhode  Island.  Other  States  re¬ 
quire  the  voter  to  have  paid  some  State  or  county  tax ;  but  if 
he  does  not  pay  it,  his  party  usually  pay  it  for  him,  so  the 
restriction  is  of  little  practical  importance.  Massachusetts  also 
requires  that  he  shall  be  able  to  read  the  State  Constitution  in 

1  A  town  or  township  means  in  New  England,  and  indeed  generally  in  the 
United  States,  a  small  rural  district,  as  opposed  to  a  city.  It  is  a  community 
which  has  not  received  representative  municipal  government. 


chap,  xxxix  STATE  GOVERNMENTS  :  THE  LEGISLATURE  335 


English,  and  to  write  his  name  (amendments  of  1857),  Connect¬ 
icut,  that  he  shall  be  able  to  read  any  section  of  the  Constitu¬ 
tion  or  of  the  statutes,  and  shall  sustain  a  good  moral  character 
(amendments  of  1855  and  1845).  This  educational  test  is  of  no 
great  consequence,  partly,  no  doubt,  because  illiteracy  is  not 
high  in  either  State ;  and  under  the  new  ballot  laws  it  will 
scarcely  be  needed.  Mississippi  prescribes  that  the  person  ap¬ 
plying  to  be  registered  “  shall  be  able  to  vekd  any  section  of 
the  Constitution  or  be  able  to  understand  the  same,  when  read 
to  him  or  give  a  reasonable  interpretation  thereof”  (Constitu¬ 
tion  of  1890). 1  Certain  terms  of  residence  .within  the  United 
States,  in  the  particular  State,  and  in  the  voting  districts,  are 
also  required :  these  vary  greatly  from  State  to  State,  but  are 
usually  short. 

The  suffrage  is  generally  the  same  for  other  purposes  as 
for  that  of  elections  to  the  legislature,  and  is  in  most  States 
confined  to  male  inhabitants.  In  a  few  States  women  are 
permitted  to  vote  at  school  district  and  in  one  (Kansas)  at 
municipal  elections,2  and  in  these  no  disability  has  been  im¬ 
posed  upon  married  women ;  nor  has  it  been  attempted,  in  the 
various  constitutional  amendments  framed  to  give  political 
suffrage  to  women,  to  draw  such  a  distinction,  which  would 
indeed  be  abhorrent  to  the  genius  of  American  law. 

It  is  important  to  remember  that,  by  the  Constitution  of  the 
United  States,  the  right  of  suffrage  in  Federal  or  National  elec¬ 
tions  ( i.e .  for  presidential  electors  and  members  of  Congress)  is 
in  each  State  that  which  the  State  confers  on  those  who  vote  at 
the  election  of  its  more  numerous  House.  That  the  differences, 
which  might  exist  between  one  State  and  another  in  the  width 
of  the  Federal  franchise  thus  granted,  are  at  present  insignifi- 

lrrhe  reasonable  interpretation  of  this  remarkable  provision  seems  to  be 
that  it  is  intended  to  furnish  a  peaceful  method  of  excluding  illiterate  negroes 
and  including  illiterate  whites  :  a  result  which  has  been  in  fact  attained,  and 
which,  though  it  may  appear  at  variance  with  the  spirit  of  the  fifteenth  amend¬ 
ment  to  the  Federal  Constitution,  is  under  the  circumstances  of  Mississippi 
possibly  not  the  worst  solution  of  a  difficult  problem. 

2  Minnesota  and  Colorado,  as  well  as  the  Dakotas  and  Montana,  give  the 
school  vote  to  women  by  their  constitutions ;  Massachusetts  has  granted  it  by 
statute;  Washington  permits  the  legislature  to  grant  it;  Idaho  grants  it  pro¬ 
visionally,  permitting  the  legislature  to  withdraw  it.  Montana  confers  what 
may  be  called  the  tax-payers’  referendum  or  direct  popular  vote  on  women 
possessing  the  like  qualifications  with  men  (Art.  ix.  §  12). 


336 


PART  II 


THE  STATE  GOVERNMENTS 


cant  is  due,  partly  to  the  prevalence  of  democratic  theories  of 
equality  over  the  whole  Union,  partly  to  the  provision  of  the 
fourteenth  amendment  to  the  Federal  Constitution,  which  re¬ 
duces  the  representation  of  a  State  in  the  Federal  House  of 
Representatives,  and  therewith  also  its  weight  in  a  presidential 
election,  in  proportion  to  the  number  of  adult  male  citizens 
disqualified  in  that  State.  ?  As  a  State  desires  to  have  its  full 
weight  in  National  politics,  it  has  a  strong  motive  for  the  widest 
possible  enlargement  of  its  Federal  franchise,  and  this  implies 
a  corresponding  width  m  its  domestic  fianchise. 

The  number  of  members  of  the  legislature  varies  greatly  from 
State  to  State.  Delaware,  with  nine  senators,  has  the  smallest 
Senate,  Illinois,  with  fifty-one,  the  largest.  Delaware  has  also 
the  smallest  House  of  Representatives,  consisting  of  twenty-one 
members;  while  New  Hampshire,  a  very  small  State,  has  the 
largest  with  321.  The  New  York  Houses  number  32  and  128 
respectively,  those  of  Pennsylvania  50  and  201,  those  of  Massa¬ 
chusetts  40  and  240.  In  the  W estern  and  Southern  States  the 
number  of  representatives  rarely  exceeds  120. 

As  there  is  a  reason  for  everything  in  the  world,  if  one  could 
but  find  it  out,  so  for  this  difference  between  the  old  New  Eng¬ 
land  States  and  those  newer  States  which  in  many  other  points 
have  followed  their  precedents.  In  the  New  England  States 
local  feeling  was  and  is  intensely  strong,  and  every  little  town 
wanted  to  have  its  member.  In  the  West  and  South,  local 
divisions  have  had  less  natural  life ;  in  fact,  they  are  artificial 
divisions  rather  than  genuine  communities  that  arose  spontane¬ 
ously.  Hence  the  same  reason  did  not  exist  in  the  West  and 
South  for  having  a  large  Assembly ;  while  the  distrust  of  rep¬ 
resentatives,  the  desire  to  have  as  few  of  them  as  possible  and 
pay  them  as  little  as  possible,  have  been  specially  strong  motives 
in  the  West  and  South,  as  also  in  New  York  and  Pennsylvania, 
and  have  caused  a  restriction  of  numbers. 

In  all  States  the  members  of  both  Houses  receive  the  same 
salary.  In  some  cases  it  is  fixed  at  an  annual  sum  of  from 
$150  (Maine)  to  $1500  (New  York),  the  average  beiftg  $500. 
More  frequently,  however,  it  is  calculated  at  so  much  for  every 
day  during  which  the  session  lasts,  varying  from  $1  (in  Rhode 
Island)  to  $8  (in  California  and  Nevada)  per  day  ($5  seems  to 
be  the  average),  besides  a  small  allowance,  called  mileage,  for 


ciiap.  xxxix  STATE  GOVERNMENTS :  THE  LEGISLATURE  337 


travelling  expenses.  The  States  which  pay  by  the  day  are  also 
those  which  limit  the  session.  Some  States  secure  themselves 
against  prolonged  sessions  by  providing  that  the  daily  pay  shall 
diminish,  or  shall  absolutely  cease  and  determine,  at  the  expiry 
of  a  certain  number  of  days,  hoping  thereby  to  expedite  business 
and  check  inordinate  zeal  for  legislation. 

It  was  formerly  usual  for  the  legislature  to  meet  annually, 
but  the  experience  of  bad  legislation  and  over-legislation  has 
led  to  fewer  as  well  as  shorter  sittings ;  and  sessions  are  now 
biennial  in  all  States  but  the  five  following Massachusetts, 
Rhode  Island,  New  York,  New  Jersey,  South  Carolina,  all  of 
them  old  States.  In  these  the  sessions  are  annual,  save  in  that 
odd  little  nook  Rhode  Island,  which  still  convokes  her  legislat¬ 
ure  every  May  at  Newport,  and  afterwards  holds  an  adjourned 
session  at  Providence,  the  other  chief  city  of  the  commonwealth. 

ere  is,  however,  in  nearly  all  States  a  power  reserved  to 
the  governor  to  summon  the  Houses  in  extraordinary  session 
should  a  pressing  occasion  arise. 

Bills  may  originate  in  either  House,  save  that  in  twenty-one 
States  money  bills  must  originate  in  the  House  of  Representa¬ 
tives,  a  rule  for  which,  in  the  present  condition  of  things,  when 
both  Houses  are  equally  directly  representative  of  the  people 
and  chosen  by  the  same  electors,  no  sufficient  ground  appears, 
t  is  a  curious  instance  of  the  wish  which  animated  the  framers 
of  the  first  constitutions  of  the  original  thirteen  States  to 
reproduce  those  details  of  the  English  Constitution  which 
had  been  deemed  bulwarks  of  liberty.  The  newer  States 
borrowed  it  from  their  elder  sisters,  and  the  existence  of  a 
similar  provision  in  the  Federal  Constitution  has  helped  to 
perpetuate  it  in  all  the  States.  But  there  is  a  reason  for 
it  in  Congress,  the  Federal  Senate  not  being  directly  repre¬ 
sentative  of  equal  numbers  of  citizens,  which  is  not  found 
m  the  State  legislatures;  it  is  in  these  last  a  mere  survival 
of  no  present  functional  value.  Money  bills  may,  however 
e  amended  or  rejected  by  the  State  Senates  like  any  other 
bills,  just  as  the  Federal  Senate  amends  money  bills  brought 
up  from  the  House.  & 

In  one  point  a  State  Senate  enjoys  a  special  power,  obviously 
modelled  on  that  of  the  English  House  of  Lords  and  the  Federal 
senate.  It  sits  as  a  court  under  oath  for  the  trial  of  State 


338 


THE  STATE  GOVERNMENTS 


PART  II 


officials  impeached  by  the  House.1  Like  the  Federal  Senate,  it 
has  in  many  States  the  power  of  confirming  or  rejecting  appoint¬ 
ments  to  office  made  by  the  governor.  When  it  considers  these 
it  is  said  to  “  go  into  executive  session.”  The  power  is  an  im¬ 
portant  one  in  those  States  which  allow  the  governor  to  nominate 
the  higher  judges.  In  other  respects,  the  powers  and  procedure 
of  the&two  Houses  of  a  State  legislature  are  identical ;  except 
that,  whereas  the  lieutenant-governor  of  a  State  is  generally 
ex  officio  president  of  the  Senate,  with  a  casting  vote  therein, 
the  House  always  chooses  its  own  Speaker.  The  legal  quorum 
is  usually  fixed,  by  the  constitution,  at  a  majority  of  the  whole 
number  of  members  elected,  though  a  smaller  number  may  ad¬ 
journ  and  compel  the  attendance  of  absent  members.  Both 
Houses  do  most  of  their  work  by  committees,  much  after  the 
fashion  of  Congress,  and  the  committees  are  in  both  usually 
chosen  by  the  Speaker  (in  the  Senate  by  the  President  of  that 
body),  though  it  is  often  provided  that  the  House  (or  Senate) 
may  on  motion  vary  their  composition.  Both  Houses  sit  with 
open  doors,  but  in  most  States  the  constitution  empowers  them 
to  exclude  strangers  when  the  business  requires  secrecy. 

The  State  governor  has  of  course  no  right  to  dissolve  the 
legislature,  nor  even  to  adjourn  it  unless  the  Houses,  while 
agreeing  to  adjourn,  disagree  as  to  the  date.  Such  control  as 
the  legislature  can  exercise  over  the  State  officers  by  way  of 
inquiry  into  their  conduct  is  generally  exercised  by  commit¬ 
tees,  and  it  is  in  committees  that  the  form  of  bills  is  usually 
settled  and  their  fate  decided,  just  as  in  the  Federal  Congress, 
the  lobby  having  of  course  a  great  and  usually  a  pernicious 
influence.  The  proceedings  are  rarely  reported.  Sometimes 
when  a  committee  takes  evidence  on  an  important  question 
reporters  are  present,  and  the  proceedings  more  resemble  a 
public  meeting  than  a  legislative  session.  It  need  scarcely 
be  added  that  neither  House  separately,  nor  both  Houses  act¬ 
ing  together,  can  control  an  executive  officer  otherwise  than 
either  by  passing  a  statute  prescribing  a  certain  course  of 
action  for  him,  which  if  it  be  in  excess  of  their  powers  will 
be  held  unconstitutional  and  void,  or  by  withholding  the 


i  In  New  York  impeachments  are  tried  by  the  Senate  and  the  judges  of  e 
Court  of  Appeals  sitting  together :  in  Nebraska  by  the  judges  of  the  Supreme 

Court. 


chap,  xxxix  STATE  GOVERNMENTS:  THE  LEGISLATURE  339 


appropriations  necessary  to  enable  him  to  carry  out  the  course 
of  action  he  proposes  to  adopt.  The  latter  method,  where 
applicable,  is  the  more  effective,  because  it  can  be  used  by  a 
bdie  majority  of  either  House,  whereas  a  bill  passed  by  both 
Houses  may  be  vetoed  by  the  governor,  a  point  so  important 
as  to  need  a  few  words. 

hour  States,  three  of  them  original  States,  vest  legislative 
authority  in  the  legislature  alone.  These  are  Rhode  Island 
Delawaie,  North  Carolina,  and  Ohio.  All  the  rest  require  a 
bill  to  be  submitted  to  the  governor,  and  permit  him  to  return 
it  to  the  legislature  with  his  objections.  If  he  so  returns  it,  it 
can  only  be  again  passed  “over  the  veto”  by  something  more 

than  a  bare  majority.  To  so  pass  a  bill  over  the  veto  there  is 
required  — 

In  two  States  a  majority  of  three-fifths  in  each  House. 

In  twenty-seven  States  a  majority  of  two-thirds  in  each 
House. 

In  nine  States  a  majority  in  each  House  of  all  the  members 
elected  to  that  House. 

In  two  States  (North  Dakota  and  Wyoming)  a  majority  of 
two-thirds  of  all  the  members  elected. 

Here,  therefore,  as  in  the  Federal  Constitution,  we  find  a 
useful  safeguard  against  the  unwisdom  or  misconduct  of  a  leg¬ 
islature,  and  a  method  provided  for  escaping,  in  extreme  cases, 
from  those  deadlocks  which  the  system  of  checks  and  balances 
tends  to  occasion. 

I  have  adverted  in  a  preceding  chapter  to  the  restrictions 
imposed  on  the  legislatures  of  the  States  by  their  respective 
constitutions.  These  restrictions,  which  are  numerous,  elabo¬ 
rate,  and  instructive,  take  two  forms  — 

I.  Exclusions  of  a  subject  from  legislative  competence,  i.e. 
prohibitions  to  the  legislature  to  pass  any  law  on  certain  enu¬ 
merated  subjects.  The  most  important  classes  of  prohibited 
statutes  are  — 

Statutes  inconsistent  with  democratic  principles,  as,  for 
example,  granting  titles  of  nobility,  favouring  one  relig¬ 
ious  denomination,  creating  a  property  qualification  for 
suffrage  or  office. 


340 


THE  STATE  GOVERNMENTS 


PART  II 


Statutes  against  public  policy,  e.g.  tolerating  lotteries,  im¬ 
pairing  the  obligation  of  contracts,  incorporating  or  per¬ 
mitting  the  incorporation  of  banks,  01  the  holding  b^y  a 
State  of  bank  stock. 

Statutes  special  or  local  in  their  application,  a  very  large 
and  increasing  category,  the  fulness  and  minuteness  of 
which  in  many  constitutions  show  that  the  mischiefs 
arising  from  improvident  or  corrupt  special  legislation 
must  have  become  alarming. 

Statutes  increasing  the  State  debt  beyond  a  certain  limited 
amount,  or  permitting  a  local  authority  to  increase  its  debt 
beyond  a  prescribed  amount,  the  amount  being  usually 
fixed  in  proportion  to  the  valuation  of  taxable  property 
within  the  area  administered  by  the  local  authority. 

II.  Restrictions  on  the  procedure  of  the  legislature,  i.e. 
directions  as  to  the  particular  forms  to  be  observed  and  times 
to  be  allowed  in  passing  bills,  sometimes  all  bills,  sometimes 
bills  of  a  certain  specified  nature.  Among  these  restrictions 
will  be  found  provisions  — 

As  to  the  majorities  necessary  to  pass  certain  bills,  especially 
appropriation  bills.  Sometimes  a  majority  of  the  whole 
number  of  members  elected  to  each  House  is  required,  or 
a  majority  exceeding  a  bare  majority. 

As  to  the  method  of  taking  the  votes,  e.g.  by  calling  over  the 
roll  and  recording  the  vote  of  each  member. 

As  to  allowing  certain  intervals  to  elapse  between  each  lead¬ 
ing  of  a  measure,  and  for  preventing  the  hurried  passage 
of  bills,  especially  appropriation  bills,  at  the  end  of  the 
session. 

As  to  the  reading  of  bills  publicly  and  at  full  length. 

As  to  sending  all  bills  to  a  committee,  and  prescribing  the 
mode  of  its  action. 

Against  secret  sessions  (Idaho). 

As  to  preventing  an  act  from  taking  effect  until  a  certain 
time,  e.g.  ninety  days  (South  Dakota,  Kentucky),  after 
the  adjournment  of  the  session. 

Against  changing  the  purpose  of  a  bill  during  its  passage. 

As  to  including  in  a  bill  only  one  subject,  and  expressing 
that  subject  in  the  title  of  the  bill. 


chap,  xxxix  STATE  GOVERNMENTS  :  THE  LEGISLATURE 


341 


Against  re-enacting,  or  amending,  or  incorporating,  any 

former  act  by  reference  to  its  title  merely,  without  set- 
ting  out  its  contents. 

The  two  latter  classes  of  provisions  might  be  found  whole 
some  m  England,  where  much  of  the  difficulty  complained  of 
by  the  judges  in  construing  the  law  arises  from  the  modern 

habit  of  incorporating  parts  of  former  statutes,  and  dealing 
with  them  by  reference.  & 

T^ejStatiU-teS  haVe  been  Passed  by  a  legislature  upon  a 
prohibited  subject,  or  where  the  prescribed  forms  have  been 
transgressed  or  omitted,  the  statute  will  be  held  void  so  far  as 
inconsistent  with  the  Constitution. 

Although  State  legislatures  have  of  course  no  concern  what¬ 
ever  with  foreign  affairs,  this  is  not  deemed  a  reason  for 
abstaining  from  passing  resolutions  on  that  subject.  The 
passion  for  what  is  called  “  resoluting  ”  is  strong  everywhere 
m  America,  and  an  expression  of  sympathy  with  an  oppressed 
foreign  nationality,  or  of  displeasure  at  any  unfriendly  behav¬ 
iour  of  a  foreign  power,  is  not  only  an  obvious  way  of  reliev¬ 
ing  the  feelings  of  the  legislators,  but  often  an  electioneering 
device,  which  appeals  to  some  section  of  the  State  voters! 
Accordingly  such  resolutions  are  common,  and,  though  of 
course  quite  irregular,  quite  innocuous. 

.  debates  in  these  bodies  are  seldom  well  reported,  and  some¬ 
times  not  reported  at  all.  One  result  isAhat  the  conduct  of 
members  escapes  the  scrutiny  of  their  c®  tituents ;  a  better 
one  that  speeches  are  generally  short  and  practical,  the  motive 
for  rhetorical  displays  being  absent.  If  a  man  does  not  make 
a  reputation  for  oratory,  he  may  for  quick  good  sense  and  busi¬ 
ness  habits.  However,  so  ^iuch  of  the  real  work  is  done  in 
committees  thatHalent  for  intrigue  or  “  management  ”  usually 
counts  for  more  than  debating  power. 


CHAPTER  XL 


THE  STATE  EXECUTIVE 


The  executive  department  in  a  State  consists  of  a  governor 
(in  all  the  States),  a  lieutenant-governor  (in  thirty-two),  and  of 
various  minor  officials.  The  governor,  who  under  the  earlier 
constitutions  of  most  of  the  original  thirteen  States  was 
chosen  by  the  legislature,  is  now  always  elected  by  the  peo¬ 
ple,  and  by  the  same  suffrage,  practically  universal,  as  the 
legislature.  He  is  elected  directly,  not,  as  under  the  Federal 
Constitution,  by  a  college  of  electors.  His  term  of  office  is, 
in  nineteen  States,  four  years;  in  two  States,  three  years;  in 
twenty-one  States,  two  years  ;  and  in  two  States  (Massachu¬ 
setts  and  Rhode  Island),  one  year.  His  salary  varies  from 
$10,000  in  Hew  York  and  Pennsylvania  to  $1000  in  Michigan. 

Some  States  limit  his  re-eligibility. 

The  earlier  constitutions  of  the  original  States  (except 
South  Carolina)  associated  with  the  governor  an  executive 
council  (called  in  Delaware  the  Privy  Council),  but  these  coun¬ 
cils  have  long  sm^e  disappeared,  except  in  Massachusetts, 
Maine,  and  NortlACkrolina,  and  the  governor  remains  in  soli¬ 
tary  glory  the  official  head  and  representative  of  the  majesty 
of  the  State.  His  powers  are,  however,  in  ordinary  times 
more  specious  than  solid,  and  only  one  of  them  is  of  great 
practical  value.  He  is  charged  with  the  duty  of  seeing  that 
'  the  laws  of  the  State  are  faithfully  administered  by  all  offi¬ 
cials  and  the  judgments  of  the  courts  carried  out.  He  has, 
in  nearly  all  States,  the  power  of  reprieving  and  pardoning 
offenders,  but  in  some  this  does  not  extend  to  treason  or  to 
conviction  on  impeachment  (in  Vermont  he  cannot  pardon  for 
murder),  and  in  some,  other  authorities  are  associated  with 
him  in  the  exercise  of  this  prerogative.  Some  recent  consti¬ 
tutions  impose  restrictions  which  witness  to  a  distrust  of  his 
action ;  nor  can  it  be  denied  that  the  power  has  sometimes 

342 


j 


CHAP.  XL 


THE  STATE  EXECUTIVE 


343 


been  used  to  release  offenders  (e.g.  against  the  election  laws') 
who  deserved  no  sympathy.  The  governor  is  also  commander- 
m-chief  of  the  armed  forces  of  the  State,  can  embody  the 
militia,  repel  invasion,  suppress  insurrection.  The  militia  are 
now  important  chiefly  as  the  force  which  may  be  used  to  sup¬ 
press  riots,  latterly  not  unfrequent  in  connection  with  labor 
disputes  Massachusetts  has  also  created  a  small  State  police 
force  (called  the  district  police),  placing  it  at  the  disposal  of 
the  governor  for  the  maintenance  of  order,  wherever  disturbed 
and  for  the  enforcement  of  various  administrative  regulations! 
it  has  recently  been  proposed  to  establish  a  State  police  in 
Pennsylvania  for  the  same  purposes.  Michigan  has  (and 
Massachusetts  and  Rhode  Island  formerly  had)  a  State  police 
tor  the  enforcement  of  their  anti-liquor  legislation. 

The  governor  appoints  some  few  officials,  but  seldom  to  high 
posts,  and  in  many  States  his  nominations  require  the  approval 
of  the  State  Senate.  Patronage,  in  which  the  President  of  the 
United  States  finds  one  of  his  most  desired  and  most  disagree¬ 
able  functions,  is  in  the  case  of  a  State  governor  of  slight 
value,  because  the  State  offices  are  not  numerous,  and  the 
more  important  and  lucrative  ones  are  filled  by  the  direct 
election  of  the  people.  He  has  the  right  of  requiring  informa¬ 
tion  from  the  executive  officials,  and  is  usually  bound  to  com¬ 
municate  to  the  legislature  his  views  regarding  the  condition 
of  the  commonwealth.  He  may  also  recommend  measures  to 
them,  but  does  not  frame  and  present  bills.  In  a  few  States 
he  is  directed  to  present  estimates.  He  has  in  all  the  States 
but  four  a  veto  upon  bills  passed  by  the  legislature.  This 
veto  may  be  overridden  in  manner  already  indicated  (see  last 
preceding  chapter),  but  generally  kills  the  measure,  because  if 
the  bill  is  a  bad  one,  it  calls  the  attention  of  the  people  to  the 
fact  and  frightens  the  legislature,  whereas  if  the  bill  be  an  un¬ 
objectionable  one,  the  governor’s  motive  for  vetoing  it  is  prob¬ 
ably  a  party  motive,  and  the  requisite  overriding  majority  can 
seldom  be  secured  in  favour  of  a  bill  which  either  party  dis¬ 
likes.  The  use  of  his  veto  is,  in  ordinary  times,  a  governor’s 

most  serious  duty,  and  chiefly  by  his  discharge  of  it  is  he 
judged. 

Although  much  less  sought  after  and  prized  than  in  “  the 
ays  of  the  Fathers,  ’  when  a  State  governor  sometimes  refused 


344 


THE  STATE  GOVERNMENTS 


PART  II 


to  yield  precedence  to  the  President  of  tlie  U  nited  States,  the 
governorship  is  still,  particularly  in  New  England  and  the 
greater  States,  a  post  of  some  dignity,  and  affords  an  oppor¬ 
tunity  for  the  display  of  character  and  talents.  During  the 
Civil  War,  when  each  governor  was  responsible  for  enrolling, 
equipping,  officering,  and  sending  forward  troops  from  his 
State,1  and  when  it  rested  with  him  to  repress  attempts  at  dis¬ 
order,  much  depended  on  his  energy,  popularity,  and  loyalty. 
In  some  States  men  still  talk  of  the  “  war  governors  ”  of  those 
days  as  heroes  to  whom  the  North  owed  deep  gratitude.  And 
since  the  Pennsylvanian  riots  of  1877  and  those  which  have 
subsequently  occurred  in  Cincinnati  and  Chicago  have  shown 
that  tumults  may  suddenly  grow  to  serious  proportions,  it  has 
in  many  States  become  important  to  have  a  man  of  prompt 
decision  and  fearlessness  in  the  office  which  issues  orders  to 
the  State  militia. 

The  elective  lieutenant-governor,  who,  in  most  States,  steps 
into  the  governor’s  place  if  it  becomes  vacant,  is  usually  also 
ex  officio  President  of  the  Senate,  as  the  Vice-1  resident  of  the 
United  States  is  of  the  Federal  Senate.  Otherwise  he  is  an 
insignificant  personage,  though  sometimes  a  member  of  some 
of  the  executive  boards. 

The  names  and  duties  of  the  other  officers  vary  from  State 
to  State.  The  most  frequent  are  a  secretary  of  state  (in  all 
States),  a  treasurer  (in  all),  an  attorney-general,  a  comptroller, 
an  auditor,  a  superintendent  of  public  instruction.  Now  and 
then  we  find  a  State  engineer,  a  surveyor,  a  superintendent  of 
prisons.  Some  States  have  also  various  boards  of  commission¬ 
ers,  e.g.  for  railroads,  for  canals,  for  prisons,  for  the  land  office, 
for  agriculture,  for  labour,  for  immigration.  Most  of  these 
officials  are  in  nearly  all  States  elected  by  the  people  at  the 
general  State  election.  Sometimes,  however,  they,  or  some  of 
them,  are  either  chosen  by  the  legislature,  or  more  rarely,  ap¬ 
pointed  by  the  governor,  whose  nomination  usually  requires 
the  confirmation  of  the  Senate.  Their  salaries,  which  of  course 
vary  with  the  importance  of  the  office  and  the  parsimony  of 

i  Commissions  to  officers  up  to  the  rank  of  colonel  inclusive  were  usually 
issued  by  the  governor  of  the  State  :  the  regiment,  in  fact,  was  a  State  product, 
though  the  regular  Federal  army  is  of  course  raised  and  managed  by  the  Fed¬ 
eral  government  directly. 


CHAP.  XL 


THE  STATE  EXECUTIVE 


345 


the  State,  seldom  exceed  $5000  per  annum  and  are  usually 
smaller.  So,  too,  the  length  of  the  term  of  office  varies.  It 
is  often  the  same  as  that  of  the  governor,  and  never  exceeds 
four  years,  except  that  in  New  Jersey,  a  conservative  State, 
the  secretary  and  attorney-general  hold  for  five  years ;  and 
in  Tennessee  the  attorney-general,  who,  oddly  enough,  is  ap¬ 
pointed  by  the  Supreme  Court  of  the  State,  holds  for  eight. 

It  has  already  been  observed  that  the  State  officials  are  in 
no  sense  a  ministry  or  cabinet  to  the  governor.  Holding  inde¬ 
pendently  of  him,  and  responsible  neither  to  him  nor  to  the 
legislature,  but  to  the  people,  they  do  not  take  generally  his 
orders,  and  need  not  regard  his  advice.  Each  has  his  own  de¬ 
partment  to  administer,  and  as  there  is  little  or  nothing  politi¬ 
cal  in  the  work,  a  general  agreement  in  policy,  such  as  must 
exist  between  the  Federal  President  and  his  ministers,  is  not 
required.  Policy  rests  with  the  legislature,  whose  statutes, 
prescribing  minutely  the  action  to  be  taken  by  the  officials, 
leave  little  room  for  executive  discretion. 

Of  the  subordinate  civil  service  of  a  State  there  is  little  to 
be  said.  Though  it  is  not  large,  for  the  sphere  of  administra¬ 
tive  action  which  remains  to  the  State  between  the  Federal 
government  on  the  one  side,  and  the  county,  city,  and  town¬ 
ship  governments  on  the  other,  is  not  wide,  it  increases  daily, 
owing  to  the  eagerness  of  the  people  (especially  in  the  West) 
to  have  State  aid  rendered  to  farmers,  to  miners,  to  stock-keep¬ 
ers,  and  generally  in  the  material  development  of  the  country. 
Much  is  now  done  in  the  way  of  collecting  statistics  and  issu¬ 
ing  reports.  However,  these  administrative  bureaux  are  sel¬ 
dom  well  manned,  for  the  State  legislatures  are  parsimonious, 
and  do  little,  by  good  salaries  or  otherwise,  to  induce  able  men 
to  enter  it :  while  the  so-called  “  Spoils  System,”  which  has 
been  hitherto  applied  to  State  no  less  than  Federal  offices, 
too  often  makes  places  the  reward  of  electioneering  and 
wirepulling.  Efforts  are  now  being  made  in  some  States  to 
induce  reforms  similar  to  those  begun  in  the  Federal  admin¬ 
istration,  whereby  certain  walks  of  the  civil  service  shall  be 
kept  out  of  politics,  at  least  so  far  as  to  secure  competent  men 
against  dismissal  on  party  grounds.  Such  reforms  would  in 
no  case  apply  to  the  higher  officials  chosen  by  the  people,  for 
they  are  always  elected  for  short  terms  and  on  party  lines. 


346 


THE  STATE  GOVERNMENTS 


PART  II 


Every  State,  except  Oregon,  provides  for  the  impeachment 
of  executive  officers  for  grave  offences.  In  all  save  two  the 
State  House  of  Representatives  is  the  impeaching  body  ;  and 
in  all  but  Nebraska  the  State  Senate  sits  as  the  tribunal,  a 
two-thirds  majority  being  generally  required  for  a  conviction. 
Impeachments  are  rare  in  practice. 

There  is  also  in  many  States  a  power  of  removing  officials, 
sometimes  by  the  vote  of  the  legislature,  sometimes  by  the 
governor  on  the  address  of  both  Houses,  or  by  the  governor 
either  alone  or  with  the  concurrence  of  the  Senate.  Such 
removals  must  of  course  be  made  in  respect  of  some  offence, 
or  for  some  other  sufficient  cause,  not  from  caprice  or  party 
motives ;  and  when  the  case  does  not  seem  to  justify  imme¬ 
diate  removal,  the  governor  is  frequently  empowered  to  sus¬ 
pend  the  officer,  pending  an  investigation  of  his  conduct. 


CHAPTER  XLI 


THE  STATE  JUDICIARY 

The  judiciary  in  every  State  includes  three  sets  of  courts : 

A  Supreme  Court  or  Court  of  Appeal;  superior  courts  of 
record ;  local  courts ;  but  the  particular  names  and  relations  of 
these  several  tribunals  and  the  arrangements  for  criminal  busi¬ 
ness  vary  greatly  from  State  to  State.  As  respects  the  distinc¬ 
tion  which  Englishmen  used  to  deem  fundamental,  that  of  courts 
of  common  law  and  courts  of  equity,  there  has  been  great  diver¬ 
sity  of  practice.  Most  of  the  original  thirteen  colonies  once 
possessed  separate  courts  of  chancery,  and  these  were  main¬ 
tained  for  many  years  after  the  separation  from  England,  and 
were  imitated  in  a  few  of  the  earlier  among  the  new  States,  such 
as  Michigan,  Arkansas,  Missouri.  In  some  of  the  old  States, 
however,  the  hostility  to  equity  jurisdiction,  which  marked 
the  popular  party  in  England  in  the  seventeenth  century,  had 
transmitted  itself  to  America.  Chancery  courts  were  regarded 
with  suspicion,  because  thought  to  be  less  bound  by  fixed  rules, 
and  therefore  more  liable  to  be  abused  by  an  ambitious  or  ca¬ 
pricious  judiciary.  Massachusetts,  for  instance,  would  permit 
no  such  court,  though  she  was  eventually  obliged  to  invest  her 
ordinary  judges  with  equitable  powers,  and  to  engraft  a  system 
of  equity  on  her  common  law,  while  still  keeping  the  two  sys¬ 
tems  distinct.  Pennsylvania  held  out  still  longer,  but  she  also 
now  administers  equity,  as  indeed  every  civilized  State  must  do 
m  substance,  dispensing  it,  however,  through  the  same  judges 
as  those  who  apply  the  common  law,  and  having  more  or  less 
worked  it  into  the  texture  of  the  older  system.  Special  chan¬ 
cery  courts  were  abolished  in  New  York,  where  they  had  flour¬ 
ished  and  enriched  American  jurisprudence  by  many  admirable 
judgments,  by  the  democratizing  Constitution  of  1846 ;  and  they 
now  exist  only  in  a  few  of  the  States,  chiefly  older  Eastern  or 
Southern  States,  which,  in  judicial  matters,  have  shown  them- 

347 


348 


THE  STATE  GOVERNMENTS 


PART  II 


selves  more  conservative  than  tlieir  sisters  in  the  "West.  In 
four  States  only  (New  York,  North  Carolina,  California,  and 
Idaho)  has  there  been  a  complete  fusion  of  law  and  equity, 
although  there  are  several  others  which  have  provided  that 
the  legislature  shall  abolish  the  distinction  between  the  two 
kinds  of  procedure.  Many,  especially  of  the  newer  States, 
provide  for  the  establishment  of  tribunals  of  arbitration  and 
conciliation. 

The  jurisdiction  of  the  State  courts,  both  civil  and  criminal, 
is  absolutely  unlimited,  i.e.  there  is  no  appeal  from  them  to  the 
Federal  courts,  except  in  certain  cases  specified  by  the  Federal 
Constitution,  being  cases  in  which  some  point  of  Federal  law 
arises.  Certain  classes  of  cases  are,  of  course,  reserved  for  the 
Federal  courts  and  in  some  the  State  courts  enjoy  a  concurrent 
jurisdiction.  All  crimes,  except  such  as  are  punishable  under 
some  Federal  statute,  are  justiciable  by  a  State  court  5  and  it 
is  worth  remembering  that  in  most  States  there  exist  much 
wider  facilities  for  setting  aside  the  verdict  of  a  jury  finding 
a  prisoner  guilty,  by  raising  all  sorts  of  points  of  law,  than  are 
permitted  by  the  law  and  practice  of  England,  or  indeed  of  any 
European  country.  Such  facilities  have  been  and  are  abused, 
to  the  great  detriment  of  the  community. 

One  or  two  other  points  relating  to  law  and  justice  in  the 
States  require  notice.  Each  State  recognizes  the  judgments  of 
the  courts  of  a  sister  State,  gives  credit  to  its  public  acts  and 
records,  and  delivers  up  to  its  justice  any  fugitive  from  its 
jurisdiction,  permitting  him,  moreover,  to  be  (if  necessary) 
tried  for  some  other  offence  than  that  in  respect  of  which  his 
extradition  was  obtained.  Of  course  the  courts  of  one  State 
are  not  bound  either  by  law  or  usage  to  follow  the  reported 
decisions  of  those  of  another  State.  They  use  such  decisions  1 
merely  for  their  own  enlightenment,  and  as  some  evidence  of 
the  common  law,  just  as  they  use  the  English  law  reports. 

Most  of  the  States  have  within  the  last  half  century  made 
sweeping  changes,  not  only  in  their  judicial  system,  but  in  the 
form  of  their  law.  They  have  revised  and  codified  their  stat¬ 
utes,  a  corrected  edition  whereof  is  issued,  every  few  years. 
They  have  in  many  instances  adopted  codes  of  procedure,  and 
in  some  cases  have  even  enacted  codes  embodying  the  sub¬ 
stance  of  the  common  law,  and  fusing  it  with  the  statutes. 


chap,  xli 


THE  STATE  JUDICIARY 


349 


Such  codes,  however,  have  been  condemned  by  the  judgment 
of  the  abler  and  more  learned  part  of  the  profession,  as  render¬ 
ing  the  law  more  uncertain  and  less  scientific.  But  with  the 
masses  of  the  people  the  proposal  is  popular,  for  it  holds  out 
a  prospect,  unfortunately  belied  by  the  result  in  States  which, 
like  California,  have  tried  the  experiment,  of  a  system  whose 
simplicity  will  enable  the  layman  to  understand  the  law,  and 
render  justice  cheaper  and  more  speedy.  A  really  good  code 
might  have  these  happy  effects.  But  it  may  be  doubted  whether 
the  codifying  States  have  taken  the  steps  requisite  to  secure  the 
goodness  of  the  codes  they  enact. 

Important  as  are  the  functions  of  the  American  judiciary, 
the  powers  of  a  judge  are  limited  by  the  State  constitutions  in 
a  manner  surprising  to  Europeans.  He  is  not  generally  allowed 
to  charge  the  jury  on  questions  of  fact,  but  only  to  state  the 
law.  He  is  sometimes  required  to  put  his  charge  in  writing. 
His  power  of  committing  for  contempt  of  court  is  often  re¬ 
stricted.  Express  rules  forbid  him  to  sit  in  causes  wherein  he 
can  have  any  family  or  pecuniary  interest. 

I  come  now  to  three  points,  which  are  not  only  important 
in  themselves,  but  instructive  as  illustrating  the  currents  of 
opinion,  which  have  influenced  the  peoples  of  the  States.  These 
are  — 

The  method  of  appointing  the  judges. 

Their  tenure  of  office. 

Their  salaries. 

The  remarkable  changes  that  have  been  made  in  the  two 
former  matters,  and  the  strange  practice  which  now  prevails  in 
the  latter,  are  full  of  significance  for  the  student  of  modern 
democracy,  full  of  warning  for  Europe  and  the  British  colonies. 

In  colonial  days  the  superior  judges  were  appointed  by  the 
governors,  except  in  Rhode  Island  and  Connecticut,  where  the 
legislature  elected  them.  When,  in  and  after  1776,  the  States 
formed  their  first  constitutions,  four  States,1  besides  the  two 
just  named,  vested  the  appointment  in  the  legislature,  five2 
gave  it  to  the  governor  with  the  consent  of  the  council ;  Dela¬ 
ware  gave  it  to  the  legislature  and  president  (=  governor)  in 

1  Virginia,  New  Jersey,  North  Carolina,  and  South  Carolina. 

2  Massachusetts,  New  Hampshire,  Pennsylvania,  Maryland,  New  York. 


350 


THE  STATE  GOVERNMENTS 


PART  II 


joint  ballot,  while  Georgia  alone  entrusted  the  election  to  the 
people. 

In  the  period  between  1812  and  1860,  when  the  tide  of 
democracy  was  running  strong,  the  function  was  in  several  of 
the  older  States  taken  from  the  governor  or  the  legislature  to 
be  given  to  the  people  voting  at  the  polls ;  and  the  same  be¬ 
came  the  practice  among  the  new  States  as  they  were  succes¬ 
sively  admitted  to  the  Union.  Mississippi,  in  1832,  made  all 
her  judges  elected  by  the  people.  The  decisive  nature  of  the 
change  was  marked  by  the  great  State  of  New  York,  which,  in 
her  highly  democratic  Constitution  of  1846,  transferred  all 
judicial  appointments  to  the  citizens  at  the  polls. 

At  present  we  find  that  in  thirty-one  States  the  judges  are 
elected  by  the  people.  These  include  nearly  all  the  Western 
and  South-western  States,  besides  New  York,  Pennsylvania, 
and  Ohio. 

In  five  States  1  they  are  elected  by  the  legislature. 

In  eight  States2  they  are  appointed  by  the  governor,  subject 
however  to  confirmation  either  by  the  council,  or  by  the  legis¬ 
lature,  or  by  one  House  thereof. 

It  will  be  observed  that  nearly  all  the  thirteen  States  which 
do  not  appoint  the  judge  by  popular  election  either  belong  to 
the  original  thirteen  colonies  or  are  States  which  have  been 
specially  influenced  by  one  of  those  thirteen  (as,  for  instance, 
Maine  was  influenced  by  Massachusetts).  It  is  these  older 
commonwealths  that  have  clung  to  the  less  democratic  methods 
of  choosing  judicial  officers ;  while  the  new  democracies  of  the 
West,  together  with  the  most  populous  States  of  the  East,  New 
York  and  Pennsylvania,  States  thoroughly  democratized  by 
their  great  cities,  have  thrown  this  grave  and  delicate  function 
into  the  hands  of  the  masses,  that  is  to  say,  of  the  wire¬ 
pullers. 

Originally,  the  superior  judges  were,  in  most  States,  like 
those  of  England  since  the  Pevolution  of  1688,  appointed  for 
life,  and  held  office  during  good  behaviour,  i.e.  were  removable 
only  when  condemned  on  an  impeachment,  or  when  an  address 

1  Rhode  Island,  Vermont,  Virginia,  South  Carolina,  Georgia. 

2  Massachusetts,  Connecticut,  New  Hampshire,  Delaware,  Maine,  Missis¬ 
sippi,  New  Jersey,  Louisiana  ;  in  the  last  of  which,  however,  district  judges, 
and  in  Maine  and  Connecticut  probate  judges,  are  popularly  elected. 


CHAP.  XLI 


THE  STATE  JUDICIARY 


351 


requesting  their  removal  had  been  presented  by  both  Houses 
of  the  legislature.1  A  judge  may  be  removed  upon  such  an 
address  m  thirty-six  States,  a  majority  of  two-thirds  in  each 
House  being  usually  required.  The  salutary  provision  of  the 
Biitish  Constitution  against  capricious  removals  has  been 
faithfully  adhered  to.  But  the  wave  of  democracy  has  in 
nearly  all  States  swept  away  the  old  system  of  life-tenure. 
Only  four  now  retain  it.2  In  the  rest  a  judge  is  elected  or 
appointed  for  a  term,  varying  from  two  years  in  Vermont  to 
twenty-one  years  in  Pennsylvania.  Eight  to  ten  years  is  the 
average  term  prescribed;  but  a  judge  is  always  re-eligible, 
and  likely  to  be  re-elected  if  he  be  not  too  old,  if  he  has  given 
satisfaction  to  the  bar,  and  if  he  has  not  offended  the  party 
which  placed  him  on  the  bench. 

The  salaries  paid  to  State  judges  of  the  higher  courts  range 
from  $8500  (chief  justice)  in  Pennsylvania  and  $10,000  in 
Hew  York,  to  $2000  in  Oregon  and  $2500  in  Vermont.  $4000 
to  $5000  (4-  $500  to  the  chief  judge)  is  the  average,  a  sum 
which,  especially  in  the  greater  States,  fails  to  attract  the 
best  legal  talent.  To  the  rule  that  justices  of  the  inferior 
courts,  receive  salaries  proportionately  lower,  there  are  excep¬ 
tions  m  large  cities,  where  judges  of  lower  tribunals,  being 
more  “  in  politics,”  can  sometimes  secure  salaries  quite  out 
of  proportion  to  their  status.3 

Any  one  of  the  three  phenomena  I  have  described  —  popu¬ 
lar  .  elections,  short  terms,  and  small  salaries  —  would  be 
sufficient  to  lower  the  character  of  the  judiciary.  Popular 
elections  throw  the  choice  into  the  hands  of  political  parties, 
that  is  to  say,  of  knots  of  wirepullers  inclined  to  use  every 
office  as  a  means  of  rewarding  political  services,  and  garrison¬ 
ing  with  grateful  partisans  posts  which  may  conceivably  be¬ 
come  of  political  importance.  Short  terms,  though  they  afford 
useful  opportunities  of  getting  rid  of  a  man  who  has  proved  a 


1The  power  of  impeachment  remains  but  is  not  often  used 

2  Massachusetts,  Rhode  Island,  New  Hampshire,  Delaware,  all  of  them 
among  the  original  thirteen.  In  Rhode  Island  the  judges  are  in  theory  dis- 
rmssible  by  the  legislature.  In  Florida,  though  the  three  justices  of  the 
supreme  Court  are  now  (Constitution  of  1886)  elected  by  the  people,  the  seven 
circuit  judges  are  appointed  by  the  governor. 

,,  3 E.g.  the  police  justices  of  New  York  City  and  the  circuit  judges  of  Wayne 
county,  Michigan,  in  which  Detroit  stands. 


352 


THE  STATE  GOVERNMENTS 


PART  II 


failure,  but  done  no  act  justifying  an  address  for  his  removal, 
oblige  the  judge  to  remember  and  keep  on  good  terms  with 
those  who  have  made  him  what  he  is,  and  in  whose  hands  his 
fortunes  lie.  They  induce  timidity,  they  discourage  indepen¬ 
dence.  And  small  salaries  prevent  able  men  from  offering  them¬ 
selves  for  places  whose  income  is  perhaps  only  one-tenth  of 
what  a  leading  attorney  can  make  by  private  practice.  Putting 
the  three  sources  of  mischief  together,  no  one  will  be  surprised 
to  hear  that  in  many  of  the  American  States  the  State  judges 
are  men  of  moderate  abilities  and  scanty  learning,  inferior, 
and  sometimes  vastly  inferior,  to  the  best  of  the  advocates 
who  practise  before  them.  It  is  less  easy  to  express  a  general 
opinion  as  to  their  character,  and  particularly  as  to  what  is 
called,  even  in  America  where  fur  capes  are  not  worn,  the 
“  purity  of  the  judicial  ermine.”  Pecuniary  corruption  seems, 
so  far  as  a  stranger  can  ascertain,  to  be  rare,  perhaps  very  rare, 
but  there  are  other  ways  in  which  sinister  influences  can  play 
on  a  judge’s  mind,  and  impair  that  confidence  in  his  impartiality 
which  is  almost  as  necessary  as  impartiality  itself.  And  apart 
from  all  questions  of  dishonesty  or  unfairness,  it  is  an  evil  that 
the  bench  should  not  be  intellectually  and  socially  at  least  on  a 

level  with  the  bar.  .  . 

The  mischief  is  serious.  But  I  must  own  that  it  is  smaller 

than  a  European  observer  is  prepared  to  expect.  In  most  of  the 
States  where  the  elective  system  prevails  the  bench  is  respect¬ 
able;  and  in  some  it  is  occasionally  adorned  by  men  of  the 
highest  eminence.  Michigan,  for  instance,  has  during  many 
years  had  a  strong  and  respected  judiciary.  One  of  its  recent 
judges  sat  for  thirty-two  years,  having  been  re-elected  six 
times  in  succession.  Not  even  in  California  or  Arkansas 
are  the  results  so  lamentable  as  might  have  been  predicted. 
New  York  City,  under  the  dominion  of  the  Tweed  Pang, 
has  afforded  the  only  instance  of  flagrant  judicial  scan¬ 
dals  ;  and  even  in  those  loathsome  days,  the  Court  of  Ap¬ 
peals  at  Albany,  the  highest  tribunal  of  the  State,  retained 
the  respect  of  good  citizens.  Justice  in  civil  causes  be¬ 
tween  man  and  man  is  fairly  administered  over  the  whole 
Union,  and  the  frequent  failures  to  convict  criminals,  or  pun¬ 
ish  them  when  convicted,  are  attributable  not  so  much  either 
to  weakness  or  to  partiality  on  a  judge’s  part  as  to  the  tender- 


CHAP.  XLI 


THE  STATE  JUDICIARY 


353 


ness  of  juries  and  the  inordinate  delays  and  complexity  of 
criminal  procedure. 

Why  then  have  sources  of  evil  so  grave  failed  to  produce 

correspondingly  grave  results?  Three  reasons  may  be  sug- 
gested  i  —  ■ 

One  is  the  co-existence  in  every  State  of  the  Federal  tribunals, 
presided  over  by  judges  who  are  usually  capable  and  always 
upright.  Their  presence  helps  to  keep  the  State  judges,  how¬ 
ever  personally  inferior,  from  losing-  the  sense  of  responsibility 
and  dignity  which  befits  the  judicial  office,  and  makes  even 
party  wirepullers  ashamed  of  nominating  as  candidates  men 
either  tainted  or  notoriously  incapable. 

Another  is  the  influence  of  a  public  opinion  which  not  only 
recognizes  the  interest  the  community  has  in  an  honest  admin¬ 
istration  of  the  law,  but  recoils  from  turpitude  in  a  highly 
placed  official.  The  people  act  as  a  check  upon  the  party  con¬ 
ventions  that  choose  candidates,  by  making  them  feel  that  they 
damage  themselves  and  their  cause  if  they  run  a  man  of  doubt¬ 
ful  character,  and  the  judge  himself  is  made  to  dread  public 
opinion  in  the  criticisms  of  a  very  unreticent  press.  Demo¬ 
cratic  theory,  which  has  done  a  mischief  in  introducing  the 
elective  system,  partly  cures  it  by  subjecting  the  bench* to  a 
light  of  publicity  which  makes  honesty  the  safest  policy. 
Whatever  passes  in  court  is,  or  may  be,  reported.  The  judge 
must  give  his  reasons  for  every  judgment  he  delivers. 

Lastly,  there  is  the  influence  of  the  bar,  a  potent  influence 
even  in  the  present  day,  when  its  rdle  is  less  brilliant  than  in 
former  generations.  The  local  party  leaders  who  select  the 
candidates  and  “  run  ”  the  conventions  are  in  some  States 
mostly  lawyers  themselves,  or  at  least  in  close  relations  with 
some  leading  lawyers  of  the  State  or  district.  Now  lawyers 
have  not  only  a  professional  dislike  to  the  entrusting  of  law 
to  incapable  hands,  the  kind  of  dislike  which  a  skilled  brick¬ 
layer  has  to  seeing  walls  badly  laid,  but  they  have  a  personal 
interest  in  getting  fairly  competent  men  before  whom  to 
plead.  It  is  no  pleasure  to  them  to  have  a  judge  so  ignorant 
or  so  weak  that  a  good  argument  is  thrown  away  upon  him, 
or  that  you  can  feel  no  confidence  that  the  opinion  given  to  a 
client,  or  a  point  of  law  which  you  think  clear,  will  be  veri¬ 
fied  by  the  decision  of  the  court.  Hence  the  bar  often  con- 


354 


THE  STATE  GOVERNMENTS 


PART  II 


trives  to  make  a  party  nomination  for  judicial  office  fall,  not 
indeed  on  a  leading  barrister,  because  a  leading  barrister  will 
not  accept  a  place  witli  $4000  a  year,  when  he  can  make 
$14,000  by  private  practice,  but  on  as  competent  a  member 
of  the  party  as  can  be  got  to  take  the  post. 

Having  constantly  inquired,  in  every  State  I  visited  wherein 
the  system  of  popular  elections  to  judgeships  prevails,  how  it 
happened  that  the  judges  were  not  worse,  I  was  usually  told 
that  the  bar  had  interposed  to  prevent  such  and  such  a  bad 
nomination,  or  had  agreed  to  recommend  such  and  such  a  per¬ 
son  as  a  candidate,  and  that  the  party  had  yielded  to  the 
wishes  of  the  bar.  Occasionally,  when  the  wirepullers  are 
on  their  good  behaviour,  or  the  bar  is  exceptionally  public- 
spirited,  a  person  will  be  brought  forward  who  has  no  claims 
except  those  of  character  and  learning.  But  it  is  perhaps 
more  common  for  the  lawyers  to  put  pressure  on  one  or 
other  party  in  nominating  its  party  candidates  to  select  capar 

ble  ones. 

These  causes,  and  especially  the  last,  go  far  to  nullify  the 
malign  effects  of  popular  election  and  short  terms.  But  they 
cannot  equally  nullify  the  effect  of  small  salaries.  Accord¬ 
ingly,  while  corruption  and  partiality  are  uncommon  among 
State  judges,  inferiority  to  the  practising  counsel  is  a  con¬ 
spicuous  and  frequent  fault. 

The  changes  of  the  last  twenty  years  have  been  on  the 
whole  for  the  better.  Some  States  which  had  vested  the  ap¬ 
pointment  of  judges  in  the  legislature,  like  Connecticut,  or 
in  the  people,  like  Mississippi,  have  by  recent  constitutional 
amendments  or  new  constitutions,  given  it  to  the  governor 
with  the  consent  of  the  legislature  or  of  one  House  thereof. 
Others  have  raised  the  salaries,  or  lengthened  the  terms  of 
the  judges,  or,  like  Hew  York,  have  introduced  both  these 
reforms.  Between  1860  and  1894,  although  the  eight  Western 
new  States  admitted  within  that  period  have  all  vested  the 
choice  of  judges  in  the  people,  and  although  Kentucky  in  1891 
could  not  be  induced,  in  spite  of  the  decline  of  her  Bench  from 
its  ancient  fame,  to  restore  the  system  of  appointment  by  the 
executive  which  had  prevailed  till  1850,  no  one  of  the  older 
States  except  Florida  took  appointments  from  legislature  or 
governor  to  entrust  them  to  popular  vote.  In  this  point  at  least, 


CHAP.  XLI 


THE  STATE  JUDICIARY 


355 


the  tide  of  democracy  which  went  on  rising  for  so  many  years, 
seems,  if  not  receding,  at  least  to  have  touched  high-water 
mark.  The  American  people,  if  sometimes  bold  in  their  ex¬ 
periments,  have  a  fund  of  good  sense  which  makes  them 

watchful  of  results,  and  not  unwilling  to  reconsider  their 
former  decisions. 


CHAPTER  XLII 

STATE  FINANCE 

The  financial  systems  in  force  in  the  several  States  furnish 
one  of  the  widest  and  most  instructive  fields  of  study  that  the 
whole  range  of  American  institutions  presents  to  a  practical 
statesman,  as  well  as  to  a  student  of  comparative  politics 

Here  only  a  few  points  can  be  touched  on,  and  1  have 
selected  the  following  for  mention: 

Purposes  for  which  State  revenue  is  required. 

Porms  of  taxation. 

Exemptions  from  taxation. 

Methods  of  collecting  taxes. 

Limitations  imposed  on  the  power  of  taxing. 

State  indebtedness. 

Restrictions  imposed  on  the  borrowing  power. 

I.  The  budget  of  a  State  is  seldom  large,  in  proportion  to 
the*  wealth  of  its  inhabitants,  because  the  chief  burden  of 
administration  is  borne  not  by  the  State,  but  by  its  subdivi¬ 
sions,  the  counties,  and  still  more  the  cities  and  townships. 
The  chief  expenses  which  a  State  undertakes  in  its  corporate 
capacity  are  —  (1)  The  salaries  of  its  officials,  executive  and 
-judicial,  and  the  incidental  expenses  of  judicial  proceedings, 
such  as  payments  to  jurors  and  witnesses ;  (2)  the  State  volun¬ 
teer  militia;  (3)  charitable  and  other  public  institutions,  such 
as  State  lunatic  asylums,  State  universities,  agricultura  co 
leges,  etc.;  (4)  grants  to  schools;  (5)  State  prisons,  compara¬ 
tively  few,  since  the  prison  is  usually  supported  by  the  county; 
(6)  State  buildings  and  public  works,  including,  in  a  few  cases, 
canals;  (7)  payment  of  interest  on  State  debts.  Of  the  whole 
revenue  collected  in  each  State  under  State  taxing  laws,  a 
comparatively  small  part  is  taken  by  the  State  itself  and 
applied  to  State  purposes.  In  1882  only  seven  States  raise 


CHAP.  XLII 


STATE  FINANCE 


357 


for  State  purposes  a  revenue  exceeding  $2,000,000.  In  1891 
the  gross  revenue  of  New  York  was  $21,243,639  (pop.  in  1890 
6,000,000);  of  Ohio,  $3,419,000  (pop.  3,680,000).  These  are 
small  sums  when  compared  either  with  the  population  and 
wealth  of  these  States,  or  with  the  revenue  raised  in  them  by 
local  authorities  for  local  purposes.  They  are  also  small  in 
comparison  with  what  is  raised  by  indirect  taxation  for  Federal 
purposes. 

II.  The  National  government  raises  its  revenue  by  indirect 
taxation,  and  by  duties  of  customs  and  excise,1  though  it  has 
the  power  of  imposing  direct  taxes,  and  used  that  power  freely 
during  the  Civil  War.  It  has  now  again  (1894)  imposed  an 
income  tax,2  exempting,  however,  smaller  incomes.  State 
revenue,  on  the  other  hand,  arises  almost  wholly  from  direct 
taxation,  since  the  Federal  Constitution  forbids  the  levying 
of  import  or  export  duties  by  a  State,  except  with  the  consent 
of  Congress,  and  directs  the  produce  of  any  such  duties  as 
Congress  may  permit  to  be  paid  into  the  Federal  treasury. 
The  chief  tax  is  m  every  State  a  property  tax,  based  on  a 
valuation  of  property,  and  generally  of  all  property,  real  and 
personal,  within  the  taxing  jurisdiction. 

The  valuation  is  made  by  officials  called  appraisers  or 
assessors,  appointed  by  the  local  communities,  though  under 
general  State  laws.  It  is  their  duty  to  put  a  value  on  all 
taxable  property;  that  is,  speaking  generally,  on  all  property 
of  whatever  nature  which  they  can  discover  or  trace  within 
the  area  of  their  authority.  As  the  contribution,  to  the 
revenues  of  the  State  or  county,  leviable  within  that  area  is 
proportioned  to  the  amount  and  value  of  taxable  property 
situate  within  it,  the  local  assessors  have,  equally  with  the 
property  owners,  an  obvious  motive  for  valuing  on  a  low  scale, 
for  by  doing  so  they  relieve  their  community  of  part  of  its 
burden.  The  State  accordingly  endeavours  to  check  and  cor¬ 
rect  them  by  creating  what  is  called  a  board  of  equalization, 
which  compares  and  revises  the  valuations  made  by  the  vari¬ 
ous  local  officers,  with  the  aim  of  having  taxable  property  in 
each  locality  equally  and  fairly  valued,  and  made  thereby  to 


1  Stamp  duties  were  also  resorted  to  during  the  Civil  War,  but  at  present 
none  are  levied  by  the  National  government. 

2  ibe  Supreme  Court  has  ruled  that  this  statute  was  unconstitutional. 


358 


THE  STATE  GOVERNMENTS 


PART  II 


bear  its  due  share  of  public  burdens.  Similarly  a  county  has 
often  an  equalization  board  to  supervise  and  adjust  the  valua¬ 
tions  of  the  towns  and  cities  within  its  limits.  However,  the 
existence  of  such  boards  does  not  overcome  the  difficulty  of 
securing  a  really  equal  valuation,  and  the  honest  county  or 
town  which  puts  its  property  at  a  fair  value  suffers  by  paying 
more  than  its  share.  Valuations  are  generally  made  at  a  figure 
much  below  the  true  worth  of  property.  In  Connecticut,  for 
instance,  the  law  directs  the  market  price  to  be  the  basis,  but 
real  estate  is  valued  only  at  from  one-third  to  three-fourths 
thereof.  Indeed  one  hears  everywhere  in  America  complaints 
of  inequalities  arising  from  the  varying  scales  on  which  valuers 
proceed. 

A  still  more  serious  evil  is  the  fact  that  so  large  a  part  of 
taxable  property  escapes  taxation.  Lands  and  houses  cannot 
be  concealed;  cattle  and  furniture  can  be  discovered  by  a  zeal¬ 
ous  tax  officer.  But  a  great  part,  often  far  the  largest  part 
of  a  rich  man’s  wealth,  consists  in  what  the  Americans  call 
“ intangible  property,”  notes,  bonds,  book  debts,  and  Western 
mortgages.  At  this  it  is  practically  impossible  to  get,  except 
through  the  declaration  of  the  owner;  and  even  if  the  owner 
is  required  to  present  his  declaration  of  taxable  property  upon 
oath,  he  is  apt  to  omit  this  kind  of  property. 

In  every  part  of  the  country  one  hears  exactly  this  stated. 
The  tax  returns  sent  in  are  rarely  truthful ;  and  not  only  does 
a  very  large  percentage  of  property  escape  its  lawful  burdens, 
but  “the  demoralization  of  the  public  conscience  by  the  fre¬ 
quent  administration  of  oaths,  so  often  taken  only  to  be  dis¬ 
regarded,  is  an  evil  of  the  greatest  magnitude.  Almost  any 
change  would  seem  to  be  an  improvement.” 

I  have  dwelt  upon  these  facts,  not  only  because  they  illus¬ 
trate  the  difficulties  inherent  in  a  property  tax,  difficulties  of 
course  greater  where  such  independent  taxing  authorities  as 
the  several  States  are  close  together,  but  also  because  they 
also  help  to  explain  the  occasional  bitterness  of  feeling  among 
the  American  farmers  as  well  as  the  masses  against  capitalists, 
much  of  whose  accumulated  wealth  escapes  taxation,  while 
the  farmer  who  owns  his  land,  as  well  as  the  workingman 
who  puts  his  savings  into  the  house  he  lives  in,  is  assessed 
and  taxed  upon  this  visible  property.  We  may,  in  fact,  say 


CHAP.  XLII 


STATE  FINANCE 


359 


of  most  States,  that  under  the  present  system  of  taxation  the 
larger  is  the  city  the  smaller  is  the  proportion  of  personalty 
reached  by  taxation  (since  concealment  is  easier  in  large  com¬ 
munities),  and  the  richer  a  man  is  the  smaller  in  proportion 
to  his  property  is  the  contribution  he  pays  to  the  State.  Add 
to  this  that  the  rich  man  bears  less,  in  proportion  to  his  income, 
of  the  burden  of  indirect  taxation,  since  the  protective  tariff 
raises  the  price  not  merely  of  luxuries  but  of  all  commodities 
except  some  kinds  of  food. 

Besides  the  property  tax,  which  is  the  main  source  of  reve¬ 
nue,  the  States  often  levy  taxes  on  particular  trades  or  occu¬ 
pations,  sometimes  in  the  form  of  a  licence  tax,  taxes  on 
franchises  enjoyed  by  a  corporation,  taxes  on  railroad  stock, 
or  (in  a  few  States)  taxes  on  collateral  inheritances.  Com¬ 
paratively  little  resort  has  hitherto  been  had  to  the  so-called 
“  death-duties,  ”  i.e.  probate,  legacy,  and  succession  duties, 
nor  is  much  use  made  of  an  income  tax.  Five  States,  how¬ 
ever,  authorize  it.  As  regards  poll-taxes  there  is  much  variety 
of  practice.  Some  State  constitutions  forbid  such  an  impost 
as  “ grievous  and  oppressive;  ”  others  direct  it  to  be  imposed’ 
or  allow  the  legislature  to  impose  it,  while  about  one-half  do 
not  mention  it.  The  amount  of  a  poll-tax  is  always  small, 
$1  f°  $3:  sometimes  (as  in  Tennessee)  the  payment  of  it  is 
made  a  pre-requisite  to  the  exercise  of  the  electoral  franchise. 
It  is  scarcely  ever  imposed  on  women  or  minors. 

III.  In  most  States,  certain  descriptions  of  property  are 
exempted  from  taxation,  as,  for  instance,  the  buildings  or 
other  property  of  the  State,  or  of  any  local  community,  bury¬ 
ing  grounds,  schools  and  universities,  educational,  charitable, 
scientific,  literary,  or  agricultural  institutions  or  societies’ 
public  libraries,  churches  and  other  buildings  or  property 
used  for  religious  purposes,  tools  and  household  furniture, 
farming  implements,  deposits  in  savings  banks.  Often  too  it 
is  provided  that  the  owner  of  personal  property  below  a  cer¬ 
tain  figure  shall  not  pay  taxes  on  it,  and  occasionally  ministers 
of  religion  are  allowed  a  certain  sum  (as  for  instance  in  New 
York,  $1500)  free  from  taxation. 

No  State  can  tax  any  bonds,  debt  certificates,  or  other 
securities  issued  by,  or  under  the  authority  of,  the  Federal 
government,  including  the  circulating  notes  commonly  called 


860 


THE  STATE  GOVERNMENTS 


PART  II 


“ greenbacks.”  This  has  been  held  to  be  the  law  on  the 
construction  of  the  Federal  Constitution,  and  has  been  so 
declared  in  a  statute  of  Congress.  Many  intricate  questions 
have  arisen  on  this  doctrine;  which,  moreover,  introduces 
an  element  of  difficulty  into  State  taxation,  because  per¬ 
sons  desiring  to  escape  taxation  are  apt  to  turn  their  prop¬ 
erty  into  these  exempted  forms  just  before  they  make  their 
tax  returns. 

IV.  Some  of  the  State  taxes,  such,  for  instance,  as  licence 
taxes,  or  a  tax  on  corporations,  are  directly  levied  by  and 
paid  to  the  State  officials.  But  others,  and  particularly  the 
property  tax,  which  forms  so  large  a  source  of  revenue,  are 
collected  by  the  local  authorities.  The  State  having  deter¬ 
mined  what  income  it  needs,  apportions  this  sum  among  the 
counties,  or  in  New  England  sometimes  directly  among  the 
towns,  in  proportion  to  their  paying  capacity,  that  is,  to 
the  value  of  the  property  situate  within  them.1  So  similarly 
the  counties  apportion  not  only  what  they  have  to  pay  to  the 
State,  but  also  the  sum  they  have  to  raise  for  county  purposes, 
among  the  cities  and  townships  within  their  area,  in  propor¬ 
tion  to  the  value  of  their  taxable  property.  Thus,  when  the 
township  or  city  authorities  assess  and  collect  taxes  from  the 
individual  citizen,  they  usually  collect  at  one  and  the  same 
time  three  distinct  sets  of  taxes,  the  State  tax,  the  county  tax, 
and  the  city  or  township  tax.  Retaining  the  latter  for  local 
purposes,2  they  hand  on  the  two  former  to  the  county  authori¬ 
ties,  who  in  turn  retain  the  county  tax,  handing  on  to  the 
State  what  it  requires.  Thus  trouble  and  expense  are  saved 
in  the  process  of  collecting,  and  the  citizen  sees  in  one  tax- 
paper  all  he  has  to  pay. 

Y.  Some  States,  taught  by  their  sad  experience  of  reckless 
legislatures,  limit  by  their  constitutions  the  amount  of  taxa¬ 
tion  which  may  be  raised  for  State  purposes  in  any  one  year. 
Sometimes  we  find  direction  that  no  greater  revenue  shall  be 
raised  than  the  current  needs  of  the  State  require,  a  rule  which 
Congress  would  have  done  well  to  observe,  seeing  that  a  sur- 

1  As  ascertained  by  the  assessors  and  board  of  equalization. 

2  Sometimes,  however,  the  town  or  township  in  its  corporate  capacity  pays 
the  State  its  share  of  the  State  tax,  instead  of  collecting  it  specially  from 
individual  citizens. 


CIIAP.  XLII 


STATE  FINANCE 


3G1 


plus  le venue  invites  extravagant  and  reckless  expenditure  and 
gives  opportunity  for  legislative  jobbery. 

It  may  be  thought  that  the  self-interest  of  the  people  is 
sufficient  to  secure  economy  and  limit  taxation.  But,  apart 
fiom  the  danger  of  a  corrupt  legislature,  it  is  often  remarked 
that  as  in  many  States  a  large  proportion  of  the  voters  do  not 
pay  State  taxes,  the  power  of  imposing  burdens  lies  largely 
in  the  hands  of  persons  who  have  no  direct  interest,  and  sup¬ 
pose  themselves  to  have  no  interest  at  all,  in  keeping  down 
taxes  which  they  do  not  pay.  So  far,  however,  as  State 
finance  is  concerned,  this  has  been  no  serious  source  of  mis¬ 
chief,  and  more  must  be  attributed  to  the  absence  of  efficient 
control  over  expenditure,  and  to  the  fact  that  (as  in  Congress) 
the  committee  which  reports  on  appropriations  of  the  revenue 
is  distinct  from  that  which  deals  with  the  raising  of  revenue 
by  taxation. 

Another  illustration  of  the  tendency  to  restrict  the  improvi¬ 
dence  of  representatives  is  furnished  by  the  prohibitions  in 
many  constitutions  to  pass  bills  appropriating  moneys  to  any 
private  individual  or  corporation,  or  to  authorize  the  payment 
of  claims  against  the  State  arising  under  any  contract  not 
strictly  and  legally  binding,  or  to  release  the  claims  which  the 
State  may  have  against  railroads  or  other  corporations.  One 
feels,  in  reading  these  multiform  provisions,  as  if  the  legislat¬ 
ure  was  a  rabbit  seeking  to  issue  from  its  burrow  to  ravage 
the  crops  wherever  it  could,  and  the  people  of  the  State  were 
obliged  to  close  every  exit,  because  they  could  not  otherwise 
restrain  its  inveterate  propensity  to  mischief. 

VI.  Nothing  in  the  financial  system  of  the  States  better 
deserves  attention  than  the  history  of  the  State  debts,  their 
portentous  growth,  and  the  efforts  made,  when  the  people  had 

taken  fright,  to  reduce  their  amount,  and  to  set  limits  to  them 
m  the  future. 

Sixty  to  seventy  years  ago,  when  those  rich  and  ample 
\\  estern  lands  which  now  form  the  States  of  Ohio,  Indiana, 
Illinois,  Michigan,  and  Missouri  were  being  opened  up  and 
settled,  and  again  forty  years  ago,  when  the  railway  system 
was  in  the  first  freshness  of  its  marvellous  extension,  and  was 
nllmg  up  the  lands  along  the  Mississippi  at  an  increasingly 
rapid  rate,  every  one  was  full  of  hope ;  and  States,  counties, 


362 


THE  STATE  GOVERNMENTS 


PART  II 


and  cities,  not  less  than  individual  men,  threw  themselves 
eagerly  into  the  task  of  developing  the  resources  which  lay 
around  them.  The  States,  as  well  as  these  minor  communi¬ 
ties,  set  to  work  to  make  roads  and  canals  and  railways ;  they 
promoted  or  took  stock  in  trading  companies,  they  started  or 
subsidized  banks,  they  embarked  in,  or  pledged  their  credit  for, 
a  hundred  enterprises  which  they  were  ill-fitted  to  conduct 
or  supervise.  Some  undertakings  failed  lamentably,  while  in 
others  the  profits  were  grasped  by  private  speculators,  and 
the  burden  left  with  the  public  body.  State  indebtedness, 
which  in  1825  (when  there  were  twenty-four  States)  stood  at 
an  aggregate  over  the  whole  Union  of  $12,790,728,  had  in 
1842  reached  $203,777,916,  in  1870  $352,866,898. 

A  part  of  the  increase  between  the  latter  years  was  due  to 
loans  contracted  for  the  raising  and  equipping  of  troops  by 
many  Northern  States  to  serve  in  the  Civil  War,  the  inten¬ 
tion  being  to  obtain  ultimate  reimbursement  from  the  National 
treasury.  There  was  also  a  good  deal,  in  the  way  of  executed 
works,  to  show  for  the  money  borrowed  and  expended,  and 
the  States  (in  1870  thirty-seven  in  number)  had  grown  vastly 
in  taxable  property.  Nevertheless  the  huge  and  increasing 
total  startled  the  people,  and,  as  everybody  knows,  some  States 
repudiated  their  debts.  The  diminution  in  the  total  indebt¬ 
edness  of  1880,  which  stood  at  $290,326,643,  and  was  the 
indebtedness  of  thirty-eight  States  and  three  Territories,  is 
partly  due  to  this  repudiation.  In  1890  the  total  stood  at 
$223,107,883.  Even  after  the  growth  of  State  debts  had  been 
checked  (in  the  way  to  be  presently  mentioned),  minor  com¬ 
munities,  towns,  counties,  but  above  all  cities,  trod  in  the 
same  path,  the  old  temptations  recurring,  and  the  risks  seem¬ 
ing  smaller  because  a  municipality  had  a  more  direct  and  close 
interest  than  a  State  in  seeing  that  its  money  or  credit  was 
well  applied.  Municipal  indebtedness  has  advanced,  espe¬ 
cially  in  the  larger  cities,  at  a  dangerously  swift  rate.  Of 
the  State  and  county  debt  much  the  largest  part  had  been  in¬ 
curred  for,  or  in  connection  with,  so-called  “internal  improve¬ 
ments  ;  ”  but  of  the  city  debt,  though  a  part  was  due  to  the 
bounties  given  to  volunteers  in  the  Civil  War,  much  must  be 
set  down  to  extremely  lax  and  wasteful  administration,  and 
much  more  to  mere  stealing,  facilitated  by  the  habit  of  sub- 


CHAP.  XLII 


STATE  FINANCE 


363 


sidizing,  or  taking  shares  in,  corporate  enterprises  which  had 
excited  the  hopes  of  the  citizens. 

VII.  The  disease  spread  till  it  terrified  the  patient,  and  a 
remedy  was  found  in  the  insertion  in  the  constitutions  of 
provisions  limiting  the  borrowing  powers  of  State  legislat¬ 
ures.  Fortunately  the  evil  had  been  perceived  in  time  to 
enable  the  newest  States  to  profit  by  the  experience  of  their 
predecessors.  For  the  last  thirty-five  years,  whenever  a  State 
has  enacted  a  constitution,  it  has  inserted  sections  restricting 
the  borrowing  powers  of  States  and  local  bodies,  and  often 
also  providing  for  the  discharge  of  existing  liabilities.  Not 
only  is  the  passing  of  bills  for  raising  a  State  loan  surrounded 
with  special  safeguards,  such  as  the  requirement  of  a  two-thirds 
majority  in  each  House  of  the  legislature;  not  only  is  there  a 
prohibition  ever  to  borrow  money  for,  or  even  to  undertake, 
internal  improvements  (a  fertile  source  of  jobbery  and  waste, 
as  the  experience  of  Congress  shows) ;  not  only  is  there  almost 
invariably  a  provision  that  whenever  a  debt  is  contracted  the 
same  act  shall  create  a  sinking  fund  for  paying  it  off  within 
a  few  years,  but  in  most  constitutions  the  total  amount  of  the 
debt  is  limited,  and  limited  to  a  sum  beautifully  small  in  pro¬ 
portion  to  the  population  and  resources  of  the  State.  Thus 
Wisconsin  fixes  its  maximum  at  $200,000;  Minnesota  and 
Iowa  at  $250,000;  Ohio  at  $750,000;  Wyoming  at  one  and 
Idaho  at  one  and  one-half  per  cent  of  the  assessed  value  of 
taxable  property;  Nebraska  and  Montana  at  $100,000;  pru¬ 
dent  Oregon  at  $50,000;  and  the  great  and  wealthy  State  of 
Pennsylvania,  with  a  population  now  exceeding  5,300,000 
(Constitution  of  1873,  Art.  ix.  §  4),  at  $1,000,000. 

In  four-fifths  of  the  States,  including  all  those  with  recent 
constitutions,  the  legislature  is  forbidden  to  “  give  or  lend  the 
credit  of  the  State  in  aid  of  any  person,  association,  or  corpora¬ 
tion,  whether  municipal  or  other,  or  to  pledge  the  credit  of 
the  State  in  any  manner  whatsoever  for  the  payment  of  the 
liabilities  present  or  prospective  of  any  individual  associa¬ 
tion,  municipal  or  other  corporation,  ”  as  also  to  take  stock 
in  a  corporation,  or  otherwise  embark  in  any  gainful  enter¬ 
prise.  Many  constitutions  also  forbid  the  assumption  by  the 
State  of  the  debts  of  any  individual  or  municipal  corporation. 

The  care  of  the  people  for  their  financial  freedom  and  safety 


364 


THE  STATE  GOVERNMENTS 


PART  II 


extends  even  to  local  bodies.  Many  of  the  recent  constitutions 
limit,  or  direct  the  legislature  to  limit,  the  borrowing  powers 
of  counties,  cities,  or  towns,  sometimes  even  Of  incorporated 
school  districts,  to  a  sum  not  exceeding  a  certain  percentage 
on  the  assessed  value  of  the  taxable  property  within  the  area 
in  question.  This  percentage  is  usually  five  per  cent.  Some¬ 
times  also  the  amount  of  the  tax  leviable  by  a  local  authority 
in  any  year  is  restricted  to  a  definite  sum  —  for  instance,  to 
one-half  per  cent  on  the  valuation.  And  in  all  the  States 
but  seven,  cities,  counties,  or  other  local  incorporated  authori¬ 
ties  are  forbidden  to  pledge  their  credit  for,  or  undertake  the 
liabilities  of,  or  take  stock  in,  or  otherwise  give  aid  to,  any 
undertaking  or  company.  Sometimes  this  prohibition  is  abso¬ 
lute;  sometimes  it  is  made  subject  to  certain  conditions,  and 
may  be  avoided  by  their  observance.  Sometimes  there  is  a 
direction  that  any  municipality  creating  a  debt  must  at  the 
same  time  provide  for  its  extinction  by  a  sinking  fund.  Some¬ 
times  the  restrictions  imposed  apply  only  to  a  particular  class 
of  undertakings  —  e.g.  banks  or  railroads.  The  differences 
between  State  and  State  are  endless ;  but  everywhere  the  ten¬ 
dency  is  to  make  the  protection  against  local  indebtedness  and 
municipal  extravagance  more  and  more  strict;  nor  will  any 
one  who  knows  these  local  authorities,  and  the  temptations, 
both  good  and  bad,  to  which  they  are  exposed,  complain  of 
the  strictness. 

The  provisions  above  described  have  had  the  effect  of  steadily 
reducing  the  amount  of  State  debts,  although  the  wealth  of 
the  country  makes  rapid  strides.  This  reduction  was  between 
1870  and  1880,  about  25  per  cent  in  the  case  of  State  debts, 
and  in  that  of  county,  town,  and  school  district  debts  about 
8  per  cent.  In  the  decade  ending  with  1890  there  was  a  large 
reduction  in  State  debts, —  $267,218,760, —  (nearly  half  of 
this,  however,  due  to  scaling  down  of  debts  of  Southern 
States) ;  but  county  debts  rose  considerably  and  the  school 
debts  still  more  largely.  In  cities  there  was,  within  the 
decade  1870-80,  not  only  no  reduction,  but  an  increase  of 
over  100  per  cent,  possibly  as  much  as  130  per  cent.  In  1890 
the  aggregate  debt  was  a  little  higher  than  it  had  been  in 
1880,  but  smaller  in  proportion  to  the  population,  which  had 
vastly  increased. 


CHAT.  XLlI 


STATE  FINANCE 


365 


This  striking  difference  between  the  cities  and  the  States 
may  be  explained  in  several  ways.  One  is  that  cities  cannot 
repudiate,  while  sovereign  States  can  and  do.1  Another  may 
be  found  in  the  later  introduction  into  State  constitutions  of 
restrictions  on  the  borrowing  powers  of  municipalities.  But 
the  chief  cause  is  to  be  found  in  the  conditions  of  the  govern¬ 
ment  of  great  cities,  where  the  wealth  of  the  community  is 
largest,  and  is  also  most  at  the  disposal  of  a  multitude  of 
ignorant  voters.  Several  of  the  greatest  cities  lie  in  States 
which  did  not  till  recently,  or  have  not  even  now,  imposed 
adequate  restrictions  on  the  borrowing  power  of  city  councils. 

1  In  some  parts  of  New  England  the  city,  town,  or  other  municipal  debt  is 
also  the  personal  debt  of  every  inhabitant,  and  is  therefore  an  excellent 
security. 


CHAPTER  XLIII 


THE  WORKING  OF  STATE  GOVERNMENTS 

We  have  now  to  inquire  how  the  organs  of  the  government 
which  have  been  described  play  into  one  another  in  practice. 
To  say  that  a  State  is  something  lower  than  the  nation  but 
greater  than  a  municipality,  is  to  say  what  is  obvious,  but  not 
instructive ;  for  the  peculiarity  of  the  State  in  America  is  that 
it  combines  some  of  the  features  which  are  to  Europeans  char¬ 
acteristic  of  a  nation  and  a  nation  only,  with  others  that  belong 
to  a  municipality. 

The  State  governments,  as  has  been  observed  already,  bear  a 
family  likeness  to  the  National  or  Federal  government,  a  like¬ 
ness  due  not  only  to  the  fact  that  the  latter  was  largely 
modelled  after  the  systems  of  the  old  thirteen  States,  but 
also  to  the  influence  which  the  Federal  Constitution  has  ex¬ 
erted  ever  since  1789  on  those  who  have  been  drafting  or 
amending  State  constitutions.  Thus  the  Federal  Constitution 
has  been  both  child  and  parent.  Where  the  State  constitu¬ 
tions  differ  from  the  Federal,  they  invariably  differ  in  being 
more  democratic.  It  still  expresses  the  doctrines  of  1787. 
They  express  the  views  of  later  days,  when  democratic  ideas 
have  been  more  rampant,  and  men  less  cautious  than  the 
sages  of  the  Philadelphia  Convention  have  given  legal  form 
to  popular  beliefs.  This  difference,  which  appears  not  only 
in  the  mode  of  appointing  judges,  but  in  the  shorter  terms 
which  the  States  allow  to  their  officials  and  senators,  comes 
out  most  clearly  in  the  relations  established  between  the  legis¬ 
lative  and  the  executive  powers.  The  National  executive, 
though  disjoined  from  the  legislature  in  a  wray  strange  to 
Europeans,  is  nevertheless  all  of  a  piece.  The  President  is 
supreme;  his  ministers  are  his  subordinates,  chosen  by  him 
from  among  his  political  associates.  They  act  under  his 
orders ;  he  is  responsible  for  their  conduct.  But  in  the 

366 


chap,  xliii  THE  WORKING  OF  STATE  GOVERNMENTS 


3C7 


States  there  is  nothing  even  distantly  resembling  a  cabinet. 
The  chief  executive  officials  are  directly  elected  by  the  people. 
They  hold  by  a  title  independent  of  the  State  governor.  They 
are  not,  except  so  far  as  some  special  statute  may  provide, 
subject  to  his  directions,  and  he  is  not  responsible  for  their 
conduct,  since  he  cannot  control  it.  As  the  governor  need 
not  belong  to  the  party  for  the  time  being  dominant  in  the 
legislature,  so  the  other  State  officials  need  not  be  of  the  same 
party  as  the  governor.1  They  may  even  have  been  elected  at 
a  different  time,  or  for  a  longer  period. 

It  might  be  thought  that  this  divergence  would  give  rise  to 
grave  practical  difficulties.  But  as  a  rule  the  executive  busi¬ 
ness  of  a  State  is  not  such  as  to  need  any  unity  of  policy,  and 
therefore  does  not  depend  upon  harmony  of  view  or  purpose 
among  those  who  manage  it.  Everything  in  the  nature  of 

State  policy  belongs  to  the  legislature,  and  to  the  legislature 
alone. 


Compare  the  Federal  President  with  the  State  governor.  The 
former  has  foreign  policy  to  deal  with,  the  latter  has  none. 
Ihe  former  has  a  vast  patronage,  the  latter  has  scarcely  any. 
The  former  has  the  command  of  the  army  and  navy,  the  lat¬ 
ter  has  only  the  militia,  insignificant  in  ordinary  times.  The 
•former  has  a  post-office,  but  there  is  no  State  postal-service. 
Little  remains  to  the  governor  except  his  veto,  which  is  not  so 
much  an  executive  as  a  legislative  function ;  the  duty  of  main¬ 
taining  order,  which  becomes  important  only  when  insurrection 
01  riot  breaks  out ;  and  the  almost  mechanical  function  of  repre¬ 
senting  the  State  for  various  matters  of  routine,  such  as  de¬ 
manding  from  other  States  the  extradition  of  offenders,  issuing 
writs  for  the  election  of  congressmen  or  of  the  State  legislature, 
receiving  the  reports  of  the  various  State  officials. 

These  officials,  even  the  highest  of  them  who  correspond  to 
the  .  cabinet  ministers  in  the  National  government,  are  either 
mere  clerks,  performing  work,  such  as  that  of  receiving  and 
paying  out  State  moneys,  strictly  defined  by  statute,  and 
usually  checked  by  other  officials,  or  else  are  in  the  nature  of 
commissioners  of  inquiry,  who  may  inspect  and  report,  but  can 
take  no  independent  action  of  importance.  Policy  does  not  lie 


er,!l1T\MfSa!fUSecttS  GleCted  in  1891  (and  aSain  in  1892)  a  Democratic  gov- 
eruor>  but  her  other  btate  ofhcials  from  the  Republican  party. 


368 


THE  STATE  GOVERNMENTS 


PART  II 


within  their  province ;  even  in  executive  details  their  discre¬ 
tion  is  confined  within  narrow  limits.  They  have,  no  doubt, 
from  the  governor  downwards,  opportunities  for  jobbing  and 
malversation ;  but  even  the  less  scrupulous  are  restrained  fiom 
using  these  opportunities  by  the  fear  of  some  investigating 
committee  of  the  legislature,  with  possible  impeachment  or 
criminal  prosecution  as  a  consequence  of  its  report.  Holding 
for  terms  which  seldom  exceed  two  or  three  years,  they  feel 
the  insecurity  of  their  position  ;  but  The  desire  to  earn  re-elec¬ 
tion  by  the  able  and  conscientious  discharge  of  their  functions, 
is  a  less  effective  motive  than  it  would  be  if  the  practice  of  re¬ 
electing  competent  men  were  more  frequent.  Unfortunately, 
here,  as  in  Congress,  the  tradition  of  many  States  is,  that  when 
a  man  has  enjoyed  an  office,  however  well  he  may  have  served 
the  public,  some  one  else  ought  to  have  the  next  turn. 

The  reason,  therefore,  why  the  system  I  have  sketched  rubs 
along  in  the  several  States  is,  that  the  executive  has  little  to 
do,  and  comparatively  small  sums  to  handle.  The  further 
reason  why  it  has  so  little  to  do  is  two-fold.  Local  govern¬ 
ment  is  so  fully  developed  that  many  functions,  which  in 
Europe  would  devolve  on  a  central  authority,  are  in  all  Ameri¬ 
can  States  left  to  the  county,  or  the  city,  or  the  township,  or 
the  school  district.  These  minor  divisions  narrow  the  province  * 
of  the  State,  just  as  the  State  narrows  the  province  of  the  cen¬ 
tral  government.  And  the  other  reason  is,  that  legislation  has 
in  the  several  States  pushed  itself  to  the  farthest  limits,  and 
so  encroached  on  subjects  which  European  legislatures  would 
leave  to  the  executive,  that  executive  discretion  is  extinct,  and 
the  officers  are  the  mere  hands  of  the  legislative  brain,  which 
directs  them  by  statutes  drawn  with  extreme  minuteness,  care¬ 
fully  specifies  the  purposes  to  which  each  money  grant  is  to  be 
applied,  and  supervises  them  by  inquisitorial  committees. 

It  is  a  natural  consequence  of  these  arrangements  that  State 
office  carries  little  either  of  dignity  or  of  power.  A  place  is 
valued  chiefly  for  its  salary,  or  for  such  opportunities  of  oblig¬ 
ing  friends  or  securing  commissions  on  contracts  as  it  may  pre¬ 
sent,  though  in  the  greatest  States  the  post  of  attorney-general 
or  comptroller  is  often  sought  by  able  men.  A  State  governor, 
however,  is  not  yet  a  nonentity.  In  more  than  one  State  a 
sort  of  perfume  from  the  old  days  lingers  round  the  office,  as 


CH'P-  XL1"  THE  FORKING  OF  STATE  GOVERNMENTS  369 

Where  the  traditions  of  last  century  were 
renewed  by  the  eminent  man  who  occuniprl  tha  *  *  J 

— “'“'tt,1”"*  “■«  w»  .<  CX  »<f  • 

stimulate  and  direct  the  patriotism  of  its  citizens  Ttmn  -i 
one  would  nowadays,  like  Mr  Jav  in  17Q^  ^  ^  ugh  no 

jaM,,  tt/rinited  SuXC™' 

the  denoshall  of  sSte  TT'’  “  the  hi§hest  offlciaI  and 
the  pivot  on  whose  aotiorpubl^ordeTturnT7  In^pSS* 
vama  riots  of  1877  it  was  the  accidental  absence  of  The  Z 

“r i™  "rrrs  s~ 

hhi  to  reptcPe  them0’  °Sn  *  WOrkmen  who  had  been 
which  swept  over  the’ UnioiTin  «^aer?lal  fc,nsis>.  like  that 

o^^Z7oftleSiSl^e  hesit’at«h  ma^end 

me  initiative  of  the  governor,  to  whom  the  eyes  of  the  nen 

1£  &Si£!atdrIe: 

abridge  or  increase  the  difficulties  of  the  community 

JeZZl  jy 7nX::n  6XeCUtiVe  magistrate  ^  a 

eeSsS!atoeeCa  Th?7  **  -^7^ t0  0  "vetoi'^biltp^std  by  the 
hat  he  had  drfea£df 

lousesr  leThatensthVeS  eXpressed  in  the  votes  of  both 

uccessfullv  i!  dnph  aPePea  f  Sdh°U  d  b®  made’  and  often  made 
ntertain  of’  tin  of  1  ?*,  °D  y  to  the  distrust  which  the  people 

iirl  to  h  r,  ®Slslatures,  but  also,  to  their  honour  be  it 

,  e  respect  of  the  people  for  courage.  They  like  above 
11  things  a  strong  man.  -  UKe  alJ0ve 

This  view  of  the  governor  as  a  check  on  the  legislature 


370 


THE  STATE  GOVERNMENTS 


PART  11 


explains  why  it  is  deemed  rather  a  gam  than  an  injury  to  the 
State  that  he  should  belong  to  the  party  which  is  for  the  time 
being  in  a  minority  in  the  legislature.  How  the  phenomenon 
occurs  may  be  seen  by  noting  the  different  methods  of  choice 
employed.  The  governor  is  chosen  by  a  mass  vote  of  all  citizens 
over  the  State.  The  representatives  are  chosen  by  the  same 
voters,  but  in  districts.  Thus  one  party  may  have  a  majority 
on  a  gross  poll  of  the  whole  State,  but  may  find  itself  in  a 
minority  in  the  larger  number  of  electoral  districts.  This  liap- 
pens  in  New  York  State,  on  an  average,  m  two  years  out  ol 
every  three.  The  mass  vote  shows  a  Democratic  majority,  be¬ 
cause  the  Democrats  are  overwhelmingly  strong  m  New  Yor 
City,  and  some  other  great  centres  of  population,  but  m  e 
rural  districts  and  most  of  the  smaller  towns  the  Kepubli- 
can  party  commands  a  majority  sufficient  to  enable  them  to 
carry  most  districts.  Hence,  while  the  governor  is  usually  a 
Democrat,  the  legislature  is  often  Republican.  Little  trouble 
need  be  feared  from  the  opposition  of  the  two  powers,  because 
such  issues  as  divide  the  National  parties  have  scarce  any  bear- 
in-  on  State  affairs.  Some  good  may  be  hoped,  because  a  gov¬ 
ernor  of  the  other  party  is  more  likely  to  check  or  show  up  the 
misdeeds  of  a  hostile  Senate  or  Assembly  than  one  who,  be¬ 
longing  to  the  group  of  men  which  guides  the  legislature,  has 
a  motive  for  working  with  them,  and  may  expect  to  share  any 

gains  they  can  amass.  .  , 

Thus  we  are  led  back  to  the  legislature,  which  is  so  much 

the  strongest  force  in  the  several  States  that  we  may  almost 
call  it  the  government  and  ignore  all  other  authorities.  Let 
us  see  how  it  gets  on  without  that  guidance  which  an  executive 
ministry  supplies  to  the  chambers  of  every  free  European 

As  tire  frame  of  a  State  government  generally  resembles 
the  National  government,  so  a  State  legislature  resembles  Con¬ 
gress.  In  most  States  it  exaggerates  the  characteristic  defects 
of  Congress.  It  has  fewer  able  and  high-minded  men  among 
its  members.  It  has  less  of  recognized  leadership.  It  is  sur¬ 
rounded  by  temptations  relatively  greater.  It  is  guarded  by 
a  less  watchful  and  less  interested  public  opinion.  But  betore 
we  inquire  what  sort  of  men  fill  the  legislative  halls,  let  us  ast 
what  kinds  of  business  draw  them  there. 


CHAP,  xliii  THE  WORKING  OF  STATE  GOVERNMENTS  371 


The  matter  of  State  legislation  may  be  classified  under  three 
heads : — 

I.  Ordinary  private  law,  i.e.  contracts,  torts,  inheritance,  fam- 
ily  lelations,  offences,  civil  and  criminal  procedure. 

II.  Administrative  law,  including  the  regulation  of  munici¬ 
pal  and  rural  local  gov^iment,  public  works,  education,  the 
liquor  tiaffic,  vaccination^  adulteration,  charitable  and  penal 
establishments,  the  inspection  of  mines  or  manufactories,  to- 
gether  with  the  general  law  of  corporations,  of  railroads,  and 
of  labour,  together  also  with  taxation,  both  State  and  local, 
and  the  management  of  the  public  debt. 

III.  Measures  of  a  local  and  special  nature,  i.e.  bills  for 
chartering  and  incorporating  gas,  water,  canal,  tramway,  or 
railway  companies,  or  for  conferring  franchises  in  the  nature 
of  monopolies  or  privileges  upon  such  bodies,  or  for  altering 
their  constitutions,  for  incorporating  cities  and  minor  conu 
munities  and  regulating  their  affairs. 

Comparing  these  three  classes  of  business,  between  the  first 
and  second  of  which  it  is  no  doubt  hard  to  draw  a  sharp  line, 
we  shall  find  that  bills  of  the  second  class  are  more  numerous 
than  those  of  the  first,  bills  of  the  third  more  numerous  than 
those  of  the  other  two  put  together.  Ordinary  private  law, 
the  law  which  guides  or  secures  us  in  the  every  day  relations 
of  life,  and  upon  which  nine-tenths  of  the  suits  between  man 
and  man  are  founded,  is  not  greatly  changed  from  year  to  year 
m  the  American  States.  Many  Western,  and  a  few  Eastern 
States  have  made  bold  experiments  in  the  field  of  divorce,  others 
have  added  new  crimes  to  the  statute-book  and  amended  their 
legal  procedure.  But  commercial  law,  as  well  as  the  law  of 
property  and  civil  rights  in  general,  remains  tolerably  stable. 
People  are  satisfied  with  things  as  they  are,  and  the  influence 
of  the  legal  profession  is  exerted  against  tinkering.  In  matters 
of  the  second  class,  which  I  have  called  administrative,  because 
they  generally  involve  the  action  of  the  State  or  of  some  of 
the  communities  which  exist  within  it,  there  is  more  legislative 
activity.  Every  session  sees  experiments  tried  in  this  field, 
generally  with  the  result  of  enlarging  the  province  of  govern¬ 
ment,  both  by  interfering  with  the  individual  citizen  and  by 
attempting  to  do  things  for  him  which  apparently  he  either 
does  not  do  or  does  not  do  well  for  himself. 


372 


THE  STATE  GOVERNMENTS 


PART  II 


But  the  general  or  “ public”  legislation  is  dwarfed  by  the 
a  private  bill  ”  legislation  which  forms  the  third  of  our  classes. 
The  bills  that  are  merely  local  or  special  outnumber  geneial 
bills  everywhere,  and  outnumber  them  enormously  in  those 
States  which  do  not  require  corporations  to  be  formed  under 
general  laws.  Such  special  bills  are  condemned  by  thoughtful 
Americans,  not  only  as  confusing  the  general  law,  but  because 
they  furnish,  unless  closely  watched,  opportunities  for  perpe¬ 
trating  jobs,  and  for  inflicting  injustice  on  individuals  or  local¬ 
ities  in  the  interest  of  some  knot  of  speculators.  They  are 
one  of  the  scandals  of  the  country.  But  there  is  a  further  ob- 
iection  to  their  abundance  in  the  State  legislatures.  They  are 
a  perennial  fountain  of  corruption.  Promoted  for  pecuniary 
ends  by  some  incorporated  company  or  group  of  men  propos¬ 
ing  to  form  a  company,  their  passage  is  secured  by  intrigue, 
and  by  the  free  expenditure  of  money  which  finds  its  way  m 
large  sums  to  the  few  influential  men  who  control  a  State 
Senate  or  Assembly,  and  in  smaller  sums  to  those  among  the 
rank  and  file  of  members  who  are  accessible  to  these  solid  argu¬ 
ments  and  careless  of  any  others.  It  is  the  possibility  of  ma  - 
in"  profit  in  this  way  out  of  a  seat  in  the  legislature  which 
draws  to  it  not  a  few  men  in  those  States  which,  like  Aew 
York,  Pennsylvania,  or  Illinois,  offer  a  promising  field  for 
large  pecuniary  enterprises.  Where  the  carcase  is  there  wi 
the  vultures  be  gathered  together.  The  money  power,  which 
is  most  formidable  in  the  shape  of  large  corporations,  chiefly 
attacks  the  legislatures  of  these  great  States.  It  is,  however, 
felt  in  nearly  all  States.  And  even  where,  as  is  the  case  m 
most  States,  only  a  small  minority  of  members  are  open  to 
bribes,  the  opportunity  which  these  numerous  local  and  special 
bills  offer  to  a  man  of  making  himself  important,  of  obliging 
his  friends,  of  securing  something  for  his  locality  and  thereby 
confirming  his  local  influence,  is  sufficient  to  make  a  seat  m 
the  legislature  desired  chiefly  in  respect  of  such  bills,  and  to 
obscure,  in  the  eyes  of  most  members,  the  higher  functions 
of  general  legislation  which  these  assemblies  possess. 

One  form  of  this  special  legislation  is  peculiarly  attractive 
and  pernicious.  It  is  the  power  of  dealing  by  statute  with 
the  municipal  constitution  and  actual  management  of  cities. 
Cities  grow  so  fast  that  all  undertakings  connected  with  them 


CHAP.  XLIH  THE  WORKING  OF  STATE  GOVERNMENTS  373 


are  particularly  tempting  to  speculators.  City  revenues  are 
so  large  as  to  offer  rich  plunder  to  those  who  can  seize  the  con¬ 
trol  of  them.  The  vote  which  a  city  casts  is  so  heavy  as  to 
throw  great  power  into  the  hands  of  those  who  control  it,  and 
enable  them  to  drive  a  good  bargain  with  the  wirepullers  of 
a  legislative  chamber.  Hence  the  control  exercised  by  the 
State  legislature  over  city  government  is  a  most  important 
branch  of  legislative  business,  a  means  of  power  to  scheming 
politicians,  of  enrichment  to  greedy  ones,  and  if  not  of  praise 
to  evil-doers,  yet  certainly  of  terror  to  them  that  do  well. 

AVe  are  now  in  a  position,  having  seen  what  the  main  busi¬ 
ness  of  a  State  legislature  is,  to  inquire  what  is  likely  to  be 
the  quality  of  the  persons  who  compose  it.  The  conditions 
that  determine  their  quality  may  be  said  to  be  the  following : _ 

I.  The  system  of  selection  by  party  conventions  —  a  sys¬ 
tem  which  tends  to  prevent  the  entrance  of  good  men  and  to 
favour  that  of  bad  ones. 

II.  The  habit  of  choosing  none  but  a  resident  to  represent 
an  electoral  district,  a  habit  which  narrows  the  field  of  choice, 
and  not  only  excludes  competent  men  from  other  parts  of  the 
State,  but  deters  able  men  generally  from  entering  State  pol¬ 
itics,  since  he  who  loses  his  seat  for  his  own  district  cannot 
find  his  way  back  to  the  legislature  as  member  for  any  other. 

III.  The  fact  that  the  capital  of  a  State,  i.e.  the  meeting- 
place  of  the  legislature  and  residence  of  the  chief  officials,  is 
usually  a  small  town,  at  a  distance  from  the  most  populous 
city  or  cities  of  the  State,  and  therefore  a  place  neither  attrac¬ 
tive  socially  nor  convenient  for  business  men  or  lawyers,  and 
which,  it  may  be  remarked  in  passing,  is  more  shielded  from 
a  vigilant  public  opinion  than  is  a  great  city,  with  its  keen 
and  curious  press. 

IV.  The  nature  of  the  business  that  comes  before  a  State 
legislature.  As  already  explained,  by  far  the  largest  part  of 
this  business  excites  little  popular  interest  and  involves  no 
large  political  issues.  Unimportant  it  is  not.  Nothing  could 
well  be  more  important  than  to  repress  special  legislation,  and 
deli\er  cities  from  the  fangs  of  the  spoiler.  But  its  impor¬ 
tance  is  not  readily  apprehended  by  ordinary  people,  the 
mischiefs  that  have  to  be  checked  being  spread  out  over  a 
multitude  of  bills,  most  of  them  individually  insignificant, 


374 


THE  STATE  GOVERNMENTS 


PART  II 


however  ruinous  in  their  cumulated  potency.  Hence  a  leading 
politician  seldom  troubles  himself  to  enter  a  State  legislature, 
while  the  men  who  combine  high  character  with  talent  and 
energy  are  too  much  occupied  in  practising  their  profession  or 
pushing  their  business  to  undertake  the  dreary  task  of  wran¬ 
gling  over  gas  and  railroad  bills  in  committees,  or  exerting 
themselves  to  win  some  advantage  for  the  locality  that  returns 
them. 

I  have  not  mentioned  among  these  depressing  conditions  the 
payment  of  salaries  to  members,  because  it  makes  little  differ¬ 
ence.  It  is  no  doubt  an  attraction  to  some  of  the  poorer  men. 
But  in  attracting  them  it  does  not  serve  to  keep  out  any  better 
men.  Probably  the  sense  of  public  duty  would  be  keener  if 
legislative  work  was  not  paid  at  all.  But,  looking  at  the  ques¬ 
tion  practically,  I  doubt  whether  the  discontinuance  of  sala¬ 
ries  would  improve  the  quality  of  American  legislators.  The 
drawbacks  to  the  position  which  repel  the  best  men,  the  ad¬ 
vantages  which  attract  inferior  men,  would  remain  the  same 
as  now  5  and  there  is  nothing  absurd  in  the  view  that  the 
places  of  those  who  might  cease  to  come  if  they  did  not  get 
their  five  dollars  a  day  would  be  taken  by  men  who  would 
manage  to  make  as  large  an  income  in  a  less  respectable  way. 

The  legislatures  of  the  Southern  States  stand,  on  the  whole, 
below  those  of  New  England  and  of  the  North-west,  though 
in  most  a  few  men  of  exceptional  ability  and  standing  may 
be  found. 

The  lowest  place  belongs  to  the  States  which,  possessing  the 
largest  cities,  have  received  the  largest  influx  of  European 
immigrants,  and  have  fallen  most  completely  under  the  con¬ 
trol  of  unscrupulous  party  managers.  Of  course  even  in  these 
States  the  majority  of  the  members  are  not  bad  men,  for  the 
majority  come  from  the  rural  districts  or  smaller  towns,  where 
honesty  and  order  reign  as  they  do  generally  in  Northern  and 
Western  America  outside  a  few  large  cities.  Many  of  them 
are  farmers  or  small  lawyers,  who  go  up  meaning  to  do  right, 
but  fall  into  the  hands  of  schemers  who  abuse  their  inexperi¬ 
ence  and  practise  on  their  ignorance. 

The  corrupt  member  has  several  methods  of  making  gains. 
One,  the  most  obvious,  is  to  exact  money  or  money’s  worth  for 
his  vote.  A  second  is  to  secure  by  it  the  support  of  a  group 


CHAP,  xliii  THE  WORKING  OF  STATE  GOVERNMENTS  375 


of  his  colleagues  in  some  other  measure  in  which  he  is  person¬ 
ally  interested,  as,  for  instance,  a  measure  which  will  add  to 
the  value  of  land  near  a  particular  city.  This  is  “  log-rolling,” 
and  is  the  most  difficult  method  to  deal  with,  because  its 
milder  forms  are  scarcely  distinguishable  from  that  legitimate 
give  and  take  which  must  go  on  in  all  legislative  bodies.  It 
is,  however,  deemed  so  mischievous,  that  four  new  constitu¬ 
tions  have  expressly  enacted  that  it  shall  be  held  to  constitute 
the  offence  of  solicitation  or  bribery,  and  be  punishable  accord- 
ingly*  A-  third  is  black-mailing.  A  member  brings  in  a  bill 
either  specially  directed  against  some  particular  great  corpora^ 
tion,  probably  a  railway,  or  proposing  so  to  alter  the  general 
law  as  in  fact  to  injure  such  a  corporation,  or  a  group  of  corpo¬ 
rations.  He  intimates  privately  that  he  is  willing  to  “see” 
the  directors  or  the  law-agents  of  the  corporation,  and  is  in 
many  cases  bought  off  by  them,  keeping  his  bill  on  the  paper 
till  the  last  moment  so  as  to  prevent  some  other  member  from 
repeating  the  trick.  Of  course  the  committees  are  the  focus 
of  intrigue,  and  the  chairmanship  of  a  committee  the  position 
which  affords  the  greatest  facilities  for  an  unscrupulous  man. 
Round  the  committees  there  buzzes  that  swarm  of  professional 
agents  which  is  called  “  the  lobby,”  soliciting  the  members, 
threatening  them  with  trouble  in  their  constituencies,  plying 
them  with  all  sorts  of  inducements,  treating  them  to  dinners, 
drinks,  and  cigars. 

I  escape  from  this  Stygian  pool  to  make  some  observations 
which  seem  applicable  to  State  legislatures  generally,  and  not 
merely  to  the  most  degraded. 

The  spirit  of  localism,  surprisingly  strong  everywhere  in 
America,  completely  rules  them.  A  member  is  not  a  member 
for  his  State,  chosen  by  a  district  but  bound  to  think  first  of 
the  general  welfare  of  the  commonwealth.  He  is  a  member 
for  Brownsville,  or  Pompey,  or  the  seventh  district,  and  so 
forth,  as  the  case  may  be.  His  first  and  main  duty  is  to  get 
the  most  he  can  for  his  constituency  out  of  the  State  treasury, 
or  by  means  of  State  legislation.  No  appeal  to  the  general 
interest  would  have  weight  with  him  against  the  interests  of 
that  spot.  What  is  more,  he  is  deemed  by  his  colleagues  of 
the  same  party  to  be  the  sole  exponent  of  the  wishes  of  the 
spot,  and  solely  entitled  to  handle  its  affairs.  If  he  approves 


376 


THE  STATE  GOVERNMENTS 


PART  n 


a  bill  which  affects  the  place  and  nothing  but  the  place,  that 
is  conclusive.  Nobody  else  has  any  business  to  interfere. 
This  rule  is  the  more  readily  accepted,  because  its  application 
all  round  serves  the  private  interest  of  every  member  alike, 
while  members  of  more  enlarged  views,  who  ought  to  cham¬ 
pion  the  interests  of  the  State  and  sound  general  principles  of 
legislation,  are  rare.  When  such  is  the  accepted  doctrine,  as 
well  as  invariable  practice,  log-rolling  becomes  natural  and 
almost  legitimate.  Each  member  being  the  judge  of  the  meas¬ 
ure  which  touches  his  own  constituency,  every  other  member 
supports  that  member  in  passing  the  measure,  expecting  in 
return  the  like  support  in  a  like  cause.  He  who  in  the  public 
interest  opposes  the  bad  bill  of  another,  is  certain  to  find  that 
other  opposing,  and  probably  with  success,  his  own  bill  how¬ 
ever  good. 

The  defects  noted  (Chapters  XIII.-XVI.)  as  arising  in 
Congress  from  the  want  of  recognized  leadership  and  of  per¬ 
sons  officially  bound  to  represent  and  protect  the  interests  of 
the  people  at  large  reappear  in  the  State  legislatures,  on  a 
smaller  scale,  no  doubt,  but  in  an  aggravated  form,  because  the 
level  of  ability  is  lower  and  the  control  of  public  opinion  less. 
There  is  no  one  to  withstand  the  petty  localism  already  re¬ 
ferred  to ;  no  one  charged  with  the  duty  of  resisting  proposals 
which  some  noisy  section  may  demand,  but  whose  ultimate 
mischief,  or  pernicious  effect  as  precedents,  thoughtful  men 
perceive.  There  are  members  for  districts,  but  no  members 
for  the  people  of  the  State.  Thus  many  needless  bills  and 
many -bad  bills  are  passed.  And  when  some  difficult  question 
arises,  it  may  happen  that  no  member  is  found  able  to  grapple 
with  it.  Sometimes  the  governor  comes  to  the  rescue  by 
appointing  a  commission  of  eminent  men  to  devise  and  sug¬ 
gest  to  the  legislature  a  measure  to  deal  with  the  question. 
Sometimes  the  Constitution  contains  a  provision  that  the 
judges  shall  report  upon  all  defects  in  the  judicial  system  in 
order  that  the  needed  reform  may  be  thereupon  carried.  Such 
are  the  roundabout  ways  in  which  efforts  are  made  to  supply 
the  want  of  capacity  in  the  legislators,  and  the  absence  of  a 
proper  system  of  co-operation  between  the  executive  and  legis¬ 
lative  departments. 

There  is  in  State  legislators,  particularly  in  the  West,  a 


CHAP.  XL.II  THE  WORKING  OF  STATE  GOVERNMENTS 


377 


restlessness  which,  coupled  with  their  limited  range  of  know- 
et  ge  and  undue  appreciation  of  material  interests,  makes  them 
rather  dangerous.  Meeting  for  only  a  few  weeks  in  the  year 
or  probably  m  two  years,  they  are  alarmingly  active  during 
those  weeks,  and  run  measures  through  whose  results  are  not 
apprehended  till  months  afterwards.  It  is  for  this  reason,  no 
less  than  from  the  fear  of  jobbery,  that  the  meeting  of  the 
legislature  is  looked  forward  to  with  anxiety  by  the  “good 

citizens  ”  in  these  communities,  and  its  departure  hailed  as  a 
deliverance. 

Both  this  restlessness  and  the  general  character  of  State 
legislation  are  illustrated  by  the  enormous  numbers  of  bills 
introduced  in.each  session,  comparatively  few  of  which  pass 
because  the  time  is  too  short,  or  opposing  influences  can  be 
brought  to  bear  on  the  committees. 

Nothing  is  more  remarkable  about  these  State  legislators 
than  their  timidity.  No  one  seems  to  think  of  having  an 
opinion  of  his  own.  In  matters  which  touch  the  interests  of 
his  constituents,  a  member  is,  of  course,  their  humble  servant. 
In  burning  party  questions  —  they  are  few,  and  mostly  per¬ 
sonal  —  he  goes  with  his  party.  In  questions  of  general  public 
policy  he  looks  to  see  how  the  cat  jumps  j  and  is  ready  to  vote 
for  anything  which  the  people,  or  any  active  section  of  the 
people,  cry  out  for,  though  of  course  he  may  be  secretly  un¬ 
friendly,  and  may  therefore  slyly  try  to  spoil  a  measure, 
ihis  want  of  independence  has  some  good  results.  It  enables 
a  small  minority  of  zealous  men,  backed  by  a  few  newspapers 
to  carry  schemes  of  reform  which  the  majority  regard  with 
indifference  or  hostility.  Thus  in  bodies  so  depraved  as  the 
legislatures  of  New  York  and  Pennsylvania,  bills  have  lately 
been  passed  improving  the  charters  of  cities,  creating  a  secret 
ballot,  and  even  establishing  an  improved  system  of  appoint¬ 
ments  to  office.  A  few  energetic  reformers  went  to  Albany 
and  Harrisburg  to  strengthen  the  hands  of  the  little  knot  of 
members  who  battle  for  good  government  there,  and  partly 
frightened,  partly  coaxed  a  majority  of  the  Senate  and  House 
into  adopting  proposals  opposed  to  the  interests  of  professional 
politicians.  Some  ten  years  ago,  two  or  three  high-minded 
and  sagacious  ladies  obtained  by  their  presence  at  Albany  the 
introduction  of  reforms  into  the  charitable  institutions  of  New 


378 


THE  STATE  GOVERNMENTS 


PA  11 T  II 


York  City.  The  ignorance  and  heedlessness  of  the  “  profes¬ 
sionals,”  who  do  not  always  see  the  results  of  legislative 
changes,  and  do  not  look  forward  beyond  the  next  few  months, 
help  to  make  such  triumphs  possible ;  and  thus,  as  the  Bible 
tells  us  that  the  wrath  of  man  shall  praise  God,  the  faults  of 
politicians  are  turned  to  work  for  righteousness. 

In  the  recent  legislation  of  many  States,  especially  West¬ 
ern  States,  there  is  a  singular  mixture  of  philanthropy  and 
humanitarianism  with  the  folly  and  jobbery  I  have  described, 
like  threads  of  gold  and  silver  woven  across  a  warp  of  dirty 
sacking.  Every  year  sees  bills  passed  to  restrict  the  sale  of 
liquor,  to  prevent  the  sale  of  indecent  or  otherwise  demoral¬ 
izing  literature,  to  protect  women  and  children,  to  stamp  out 
lotteries  and  gambling  houses,  to  improve  the  care  of  the 
blind,  the  insane,  and  the  poor,  which  testify  to  a  warm  and 
increasing  interest  in  all  good  works.  These  measures  are  to 
be  explained,  not  merely  by  that  power  which  an  active  and 
compact  minority  enjoys  of  getting  its  own  way  against  a 
crowd  of  men  bent  each  on  his  own  private  gain,  and  therefore 
not  working  together  for  other  purposes,  but  also  by  the  real 
sympathy  which  many  of  the  legislators,  especially  in  the 
rural  districts,  feel  for  morality  and  for  suffering.  Even  the 
corrupt  politicians  of  Albany  were  moved  by  the  appeals  of 
the  philanthropic  ladies  to  whom  I  have  referred ;  much  more 
then  would  it  be  an  error  to  think  of  the  average  legislator  as 
a  bad  man,  merely  because  he  will  join  in  a  job,  or  deal 
unfairly  with  a  railroad.  Laxity  in  the  discharge  of  a  politi¬ 
cal  trust  is  a  kind  of  fault  which  in  some  parts  of  the  country 
is  considered  a  comparatively  venal  offence.  It  is  also  one 
which  is  often  hard  to  prove,  even  where  grave  suspicion  ex¬ 
ists.  The  newspapers  accuse  everybody ;  the  ordinary  citizen 
can  seldom  tell  who  is  innocent  and  who  is  guilty.  He  makes 
a  sort  of  compromise  in  his  own  mind  by  thinking  nobody 
quite  black,  but  everybody  gray.  And  he  goes  on  to  think 
that  what  everybody  does  cannot  be  very  sinful. 


CHAPTER  XLIV 


REMEDIES  FOR  THE  FAULTS  OF  STATE  GOVERNMENTS 

The  defects  in  State  governments,  which  our  examination 
of  their  working  has  disclosed,  are  not  those  we  should  have 
expected.  It  might  have  been  predicted,  and  it  was  at  one 
time  believed,  that  these  authorities,  consumed  by  jealousy 
and  stimulated  by  ambition,  would  have  been  engaged  in  con¬ 
stant  efforts  to  extend  the  sphere  of  their  action  and  encroach 
on  the  National  government.  This  does  not  happen,  and 
seems  most  unlikely  to  happen.  The  people  of  each  State 
are  now  not  more  attached  to  the  government  of  their  own 
commonwealth  than  to  the  Federal  government  of  the  nation, 
whose  growth  has  made  even  the  greatest  State  seem  insig¬ 
nificant  beside  it. 

A  study  of  the  frame  of  State  government,  in  which  the 
executive  department  is  absolutely  severed  from  the  legisla¬ 
tive,  might  have  suggested  that  the  former  would  become  too 
independent,  misusing  its  powers  for  personal  or  party  pur¬ 
poses,  while  public  business  would  suffer  from  the  want  of 
concert  between  the  two  great  authorities,  that  which  makes 
and  that  which  carries  out  the  law. 

This  also  has  proved  in  practice  to  be  no  serious  evil.  The 
legislature  might  indeed  conceivably  work  better  if  the  gov¬ 
ernor,  or  some  of  his  chief  officials,  could  sit  in  it  and  exercise 
an  influence  on  its  deliberations.  Such  an  adaptation  of  the 
English  cabinet  system  has,  however,  never  been  thought  of 
for  American  States;  and  the  example  of  the  provincial  legis¬ 
latures  of  Canada,  in  each  of  which  there  is  a  responsible 
ministry  sitting  in  the  legislature,  does  not  seem  to  have  rec¬ 
ommended  it  for  imitation.  Those  who  founded  the  State 
governments  did  not  desire  to  place  any  executive  leaders  in 
a  representative  assembly.  Probably  they  were  rather  in¬ 
clined  to  fear  that  the  governor,  not  being  accountable  to  the 

379 


380 


THE  STATE  GOVERNMENTS 


PART  II 


legislature,  would  retain  too  great  an  independence.  The 
recent  creation  of  various  administrative  officers  or  boards 
has  gone  some  way  to  meet  the  difficulties  which  the  incom¬ 
petence  of  the  legislatures  causes,  for  these  officers  or  boards 
frequently  prepare  bills  which  some  member  of  the  legislature 
introduces,  and  which  are  put  through  without  opposition, 
perhaps  even  without  notice,  except  from  a  handful  of  mem¬ 
bers.  On  the  whole,  the  executive  arrangements  of  the  State 
work  well,  though  they  might,  in  the  opinion  of  some  judicious 
publicists,  be  improved  by  vesting  the  appointment  of  the 
chief  officials  in  the  governor,  instead  of  leaving  it  to  direct 
popular  election.  This  would  tend  to  give  more  unity  of 
purpose  and  action  to  the  administration.  The  collisions 
which  occur  in  practice  between  the  governor  and  the  legislat¬ 
ure  relate  chiefly  to  appointments,  that  is  to  say,  to  personal 
matters,  not  involving  issues  of  State  policy. 

The  real  blemishes  in  the  system  of  State  government  are 
all  found  in  the  composition  or  conduct  of  the  legislatures. 
They  are  the  following :  — 

Inferiority,  as  respects  knowledge,  skill,  and  sometimes  also 
conscience,  of  the  bulk  of  the  men  who  fill  these  bodies. 

Improvidence  in  matters  of  finance. 

Heedlessness  in  passing  administrative  bills. 

Want  of  proper  methods  for  dealing  with  local  and  special 
bills. 

Failure  of  public  opinion  adequately  to  control  legislation, 
and  particularly  local  and  special  bills. 

The  practical  result  of  these  blemishes  has  been  to  create  a 
large  mass  of  State  and  local  indebtedness  which  ought  never 
to  have  been  incurred,  to  allow  foolish  experiments  in  law¬ 
making  to  be  tried,  and  to  sanction  a  vast  mass  of  private 
enterprises,  in  which  public  rights  and  public  interests  become 
the  sport  of  speculators,  or  a  source  of  gain  to  monopolists, 
with  the  incidental  consequence  of  demoralizing  the  legislators 
themselves  and  creating  an  often  unjust  prejudice  against  all 
corporate  undertakings. 

What  are  the  checks  or  remedies  which  have  been  provided 
to  limit  or  suppress  these  evils?  Any  one  who  has  followed 
the  account  given  of  the  men  who  compose  the  legislatures 


chap,  xliv  FAULTS  OF  STATE  GOVERNMENTS 


381 


and  the  methods  they  follow  will  have  felt  that  these  checks 
must  be  considerable,  else  the  results  would  have  been  worse 
than  those  we  see.  All  remedies  are  directed  against  the 
legislative  power,  and  may  be  arranged  under  four  heads. 

h  irst,  there  is  the  division  of  the  legislature  into  two 
Houses.  A  job  may  have  been  smuggled  through  one  House, 
but  the  money  needed  to  push  it  through  the  other  may  be 
wanting.  Some  wild  scheme,  professing  to  benefit  the  farmers, 
or  the  cattlemen,  or  the  railroad  employes,  may,  during  its 
passage  through  the  Assembly,  rouse  enough  attention  from 
sensible  people  to  enable  them  to  stop  it  in  the  Senate.  The 
mere  tendency  of  two  chambers  to  disagree  with  one  another 
is  deemed  a  benefit  by  those  who  hold,  as  the  Americans  do, 
that  every  new  measure  is  prima  facie  likely  to  do  more  harm 
than  good.  Most  bills  are  bad  —  ergo,  kill  as  many  as  you 
can.  Each  House,  moreover,  has,  even  in  such  demoralized 
State  legislatures  as  those  of  New  York  or  Pennsylvania,  a 
satisfaction,  if  not  an  interest,  in  unveiling  the  tricks  of  the 
other. 

Secondly,  there  is  the  veto  of  the  governor.  How  much 
the  Americans  value  this  appears  from  the  fact  that,  whereas 
in  1789  there  was  only  one  State,  Massachusetts,  which  vested 
this  power  in  the  chief  magistrate,  all  of  the  now  existing 
States  except  four  give  it  to  him.  Some  constitutions  (includ- 
ing  all  the  new  ones)  contain  the  salutary  provision  that  the 
governor  may  reject  one  or  more  items  of  an  appropriation 
bill  (sometimes  even  of  any  bill)  while  approving  the  bill  as 
a  whole;  and  this  has  been  found  to  strengthen  his  hands 
immensely  in  checking  the  waste  of  public  money  on  bad  en¬ 
terprises.  This  veto  power,  the  great  stand-by  of  the  people 
of  the  States,  illustrates  admirably  the  merits  of  concentrated 
responsibility.  The  citizens,  in  choosing  the  governor  to 
repiesent  the  collective  authority  of  the  whole  State,  lay  on 
him  the  duty  of  examining  every  bill  on  its  merits.  He  can¬ 
not  shelter  himself  behind  the  will  of  the  representatives  of 
the  people,  because  he  is  appointed  to  watch  and  check  those 
representatives  as  a  policeman  watches  a  suspect.  He  is  bound 
to  reject  the  bill,  not  only  if  it  seems  to  him  to  infringe  the 
constitution  of  the  State,  but  also  if  he  thinks  it  in  any  wise 
injurious  to  the  public,  on  pain  of  being  himself  suspected 


382 


THE  STATE  GOVERNMENTS 


PART  II 


of  carelessness,  perhaps  of  complicity  in  some  corrupt  design. 
The  legislature  may,  of  course,  pass  the  bill  over  his  veto  by 
a  two-thirds  vote  5  but  although  there  may  exist  a  two  thiids 
majority  in  favour  of  the  measure,  they  may  fear,  after  the 
veto  has  turned  the  lamp  of  public  opinion  upon  it,  to  take  so 
strong  a  step.  There  are,  of  course,  great  differences  between 
one  governor  and  another,  as  well  as  between  one  State  and 
another,  as  regards  the  honesty  with  which  the  power  is  ex¬ 
ercised,  for  it  may  be,  and  sometimes  is,  used  by  a  “Ring” 
governor  to  defeat  measures  of  reform.  But  it  is  a  real  and 
effective  power  everywhere  5  and  in  the  gieatest  States,  where 
the  importance  of  the  office  sometimes  secures  the  election  of 
an  able  and  courageous  man,  it  has  done  excellent  service. 

Thirdly,  there  are  limitations  imposed  on  the  competence 
of  the  legislature.  I  have  already  mentioned  some  of  these 
limitations,  the  most  numerous,  and  at  present  the  most  im¬ 
portant  of  which  relate  to  special  and  local  bills.  These 
bills,  while  they  destroy  the  harmony  and  simplicity  of  the 
law,  and  consume  the  time  of  the  legislature,  are  also  so  fertile 
a  source  of  jobbery  that  to  expunge  them  or  restrict  them  to 
cases  where  a  special  statute  was  really  needed,  would  be  a 
great  benefit.  The  constitutional  prohibitions  described  effect 
this  to  some  extent.  But  the  powers  of  evil  do  not  yield  with¬ 
out  a  battle.  All  sorts  of  evasions  are  tried,  and  some  succeed. 
For  instance,  there  is  a  prohibition  in  the  Constitution  of  New 
York  to  pass  any  but  general  laws  relating  to  the  government 
of  cities.  An  act  is  passed  which  is  expressed  to  apply  to 
cities  with  a  population  exceeding  one  hundred  thousand  but 
less  than  two  hundred  thousand.  There  happens  to  be  only 
one  such  city  in  the  State,  viz.  Buffalo,  but  as  there  might  be 
more,  the  law  is  general,  and  escapes  the  prohibition.  So  the 
Constitution  of  Ohio  expressly  provides  that  the  legislature 
“shall  pass  no  special  act  conferring  corporate  powers.”  But 
in  1890  nearly  fifty  such  acts  were  passed,  the  provision  being 
evaded  by  the  use  of  general  enacting  words  which  can  in  fact 
apply  only  to  one  place. 

Provisions  against  special  legislation  are  also  evaded  in 
another  way,  viz.  by  passing  acts  which,  because  they  pur¬ 
port  to  amend  general  acts,  are  themselves  deemed  general. 
Where  evasions  of  this  kind  become  frequent  the  confusion  of 


CHAP.  XLIV 


FAULTS  OF  STATE  GOVERNMENTS 


383 


the  statute-book  is  worse  than  ever,  because  you  cannot  tell 
without  examination  whether  an  act  is  general  or  special. 

Some  one  may  remark  that  there  are  two  material  differ¬ 
ences  between  the  position  of  State  judges  and  that  of  the 
Federal  judges.  The  latter  are  not  appointed  by  a  State,  and 
are  therefore  in  a  more  independent  position  when  any  ques¬ 
tion  of  conflict  between  State  laws  or  constitutions  and  the 
Federal  Constitution  or  statutes  comes  before  them.  More¬ 
over  they  hold  office  for  life,  whereas  the  State  judge  usually 
holds  for  a  term  of  years,  and  has  his  re-election  to  think  of. 
Can  the  State  judge  then  be  expected  to  show  himself  equally 
bold  in  declaring  a  State  statute  to  be  unconstitutional?  Will 
he  not  offend  the  legislature,  and  the  party  managers  who 
control  it,  by  flying  in  their  faces? 

Ihe  answer  is  that  although  the  judge  may  displease  the 
legislature  if  he  decides  against  the  validity  of  an  unconstitu¬ 
tional  statute,  he  may  displease  the  people  if  he  decides  for 
it;  and  it  is  safer  to  please  the  people  than  the  legislature. 
The  people  at  large  may  know  little  about  the  matter,  but  the 
legal  profession  know,  and  are  sure  to  express  their  opinion. 
The  profession  look  to  the  courts  to  save  them  and  their  clients 
from  the  heedlessness  or  improbity  of  the  legislature,  and  will 
condemn  a  judge  who  fails  in  this  duty.  Accordingly,  the 
judges  seldom  fail.  They  knock  about  State  statutes  most 
unceremoniously,  and  they  seldom  suffer  for  doing  so.  In  one 
case  only  is  their  position  a  dangerous  one.  When  the  peo¬ 
ple,  possessed  by  some  strong  desire  or  sentiment,  have  either 
by  the  provisions  of  a  new  constitution,  or  by  the  force  of 
clamour,  driven  the  legislature  to  enact  some  measure  meant  to 
cure  a  pressing  ill,  they  may  turn  angrily  upon  the  judge  who 
holds  that  measure  to  have  been  unconstitutional.  This  has 
several  times  happened,  and  is  always  liable  to  happen  where 
elective  judges  hold  office  for  short  terms,  with  the  unfortunate 
result  of  weakening  the  fortitude  of  the  judges.  In  1786  the 
Supreme  Court  of  Rhode  Island  decided  that  an  act  passed  by 
the  legislature  was  invalid,  because  contravening  the  provision 
of  the  Colonial  Charter  (which  was  then  still  the  Constitution 
of  the  State)  securing  to  every  accused  person  the  benefit  of 
trial  by  jury.  The  legislature  were  furious,  and  summoned 
the  judges  to  appear  before  them  and  explain  the  grounds  of 


384 


THE  STATE  GOVERNMENTS 


PART  II 


tlieir  decision.  The  attempt  to  dismiss  them  failed,  but  the 
judges  were  not  reflected  by  the  legislature  when  theii  teim 
of  office  expired  at  the  end  of  the  year. 

It  will  be  seen  from  what  has  been  said  that  the  judges  are 
an  essential  part  of  the  machinery  of  State  government.  But 
they  are  so  simply  as  judges,  and  not  as  invested  with  politi¬ 
cal  powers  or  duties.  They  have  not  received,  any  more  than 
the  Federal  judges,  a  special  commission  to  restrain  the 
legislature  or  pronounce  on  the  validity  of  its  acts.  There 
is  not  a  word  in  the  State  constitutions,  any  more  than  in 
the  Federal  Constitution,  conferring  any  such  right  upon  the 
courts,  or  indeed  conferring  any  other  right  than  all  courts 
of  law  must  necessarily  enjoy.  When  they  declare  a  statute 
unconstitutional  they  do  so  merely  in  their  ordinary  function 
of  expounding  the  law  of  the  State,  its  fundamental  law  as 
well  as  its  laws  of  inferior  authority. 

So  far  we  have  been  considering  restrictions  imposed  on  the 
competence  of  the  legislature,  or  on  the  methods  of  its  pro¬ 
cedure.  We  now  come  to  the  fourth  and  last  of  the  checks 
which  the  prudence  of  American  States  imposes.  It  is  a  very 
simple,  not  to  say  naive,  one.  It  consists  in  limiting  the  time 
during  which  the  legislature  may  sit. .  Formerly  these  bodies 
sat,  like  the  English  Parliament,  so  long  as  they  had  business 
to  do.  The  business  seldom  took  long.  When  it  was  done,  the 
farmers  and  lawyers  naturally  wished  to  go  home,  and  home 
they  went.  But  when  the  class  of  professional  politicians 
grew  up,  these  wholesome  tendencies  lost  their  power  over 
a  section  of  the  members.  .Politics  was  their  business,  and 
they  had  none  other  to  call  them  back  to  the  domestic  hearth. 
They  had  even  a  motive  for  prolonging  the  session,  because 
they  prolonged  their  legislative  salary,  which  was  usually 
paid  by  the  day.  Thus  it  became  the  interest  of  the  tax-payer 
to  shorten  the  session.  His  interest,  however,  was  still 
stronger  in  cutting  short  the  jobs  and  improvident  bestowal 
of  moneys  and  franchises  on  which  he  found  his  representatives 
employed.  Accordingly  most  States  have  fixed  a  number  of 
days  beyond  which  the  legislature  may  not  sit.  Many  of 
these  fix  it  absolutely;  but  a  few  prefer  the  method  of  cutting 
off  the  pay  of  their  legislators  after  the  prescribed  number  of 
days  has  expired,  so  that  if  they  do  continue  to  devote  them- 


CHAP.  XLIV 


faults  of  state  governments 


385 


selves  still  longer  to  the  work  of  law-making,  their  virtue 
shall  be  its  own  reward.  Experience  has,  however,  disclosed  a 
danger  in  these  absolutely  limited  sessions.  It  is  that  of  haste 
and  recklessness  in  rushing  bills  through  without  due  discus¬ 
sion.  Sometimes  it  happens  that  a  bill  introduced  in  response 
to  a  vehement  popular  demand  is  carried  with  a  run  (so  to 
speak),  because  the  time  for  considering  it  cannot  be  extended 
wlmreas  longer  consideration  would  have  disclosed  its  d^geS 
lany  lecent  constitutions  have  tried  another  and  probably 
a  better  expedient.  They  have  made  sessions  less  frequent 
, ,  „  e  ™e  ®^ery  legislature  met  once  a  year.  Now  in  all 

years  Within  thei  “*  f  r“itted  to  meet  in  two 

3  •  VV  thm  the  last  fourteen  years,  at  least  seven  States 

have  changed  their  annual  sessions  to  biennial.  It  does  not 
appear  that  the  interests  of  the  commonwealths  suffer  by  this 
suspension  of  the  action  of  their  chief  organ  of  government 
On  the  contrary,  they  get  on  so  much  better  without  a  legislat¬ 
ure  that  certain  bold  spirits  ask  whether  the  principle  “ought 
not  to  be  pushed  farther.  *  ° 

to^form^h^le^^r6  fCTd  !t  S°  difflcult  and  troublesome 
contend)  leglslat"r^  that  they  have  concluded  to  be 

find  med^iiesTr8  ^  ^  S°  ““V  «oms  as  they  can 

nd  medicines  for,  and  waiting  to  see  in  what  new  direction 

he  virus  will  work.  “After  all,”  they  say,  “the  disease 

of°the  I'*  Hful  and  VeXhlg’  d°eS  D0t  endanger  the  life 

vorsJ  that  the  1  !  T  6Ven  diminish  his  strength.  The 

md  frv  se  f  legislatures  can  do  is  to  waste  some  money, 

ud  tiy  Some  foolish  experiments  from  which  the  good  sense 

'tosses  toTear  T  l  preSently  withdraw-  Every  one  has  his 
s  true  enonl  l  i®  compatatively  light.”  All  which 
ituatL  onf;,  snores  two  important  features  in  the 
1  on,  one,  that  the  constitutional  organs  of  government 
lecome  constantly  more  discredited,  the  other  that  the  tre- 
uendous  influence  exerted  by  wealth  and  the  misuse  of  public 

ave  created  a  0aptalists-  and  especially  to  companies, 

lav  bre W  n  t  TS  ,  maSSeS  °f  the  Pe°P]e  idea«  which 
oskmiL  6  111  demauds  for  leglslation  of  a  new  and  danger- 

iintLteT67  °f  rthe  State  gnvemments  which  we  have  now 
Jmpleted  suggests  several  reflections. 

2c 


386 


THE  STATE  GOVERNMENTS 


PART  II 


One  of  these  is  that  the  political  importance  of  the  States 
is  no  longer  what  it  was  in  the  early  days  of  the  Republic. 
Although  the  States  have  grown  enormously  in  wealth  and 
population,  they  have  declined  relatively  to  the  central  govern¬ 
ment.  The  excellence  of  State  laws  and  the  merits  of  a  State 
administration  make  less  difference  to  the  inhabitants  than 
formerly,  because  the  hand  of  the  National  government  is  more 
frequently  felt.  The  questions  which  the  State  deals  with, 
largely  as  they  influence  the  welfare  of  the  citizen,  do  not 
touch  his  imagination  like  those  which  Congress  handles, 
because  the  latter  determine -the  relations  of  the  Republic  to 
the  rest  of  the  world,  and  affect  all  the  area  that  lies  between 
the  two  oceans.  The  State  set  out  as  an  isolated  and  self- 
sufficing  commonwealth.  It  is  now  merely  a  part  of  a  far 
grander  whole,  which  seems  to  be  slowly  absorbing  its  func¬ 
tions  and  stunting  its  growth,  as  the  great  tree  stunts  the 
shrubs  over  which  its  spreading  boughs  have  begun  to  cast 

I  do  not  mean  to  say  that  the  people  have  ceased  to  care  for 
their  States;  far  from  it.  They  are  proud  of  their  States, 
even  where  there  may  be  little  to  be  proud  of.  But  if  these 
commonwealths  meant  to  their  citizens  what  they  did  in  the 
days  of  the  Revolution,  if  they  commanded  an  equal  measure 
of  their  loyalty,  and  influenced  as  largely  their  individual 
welfare,  the  State  legislatures  would  not  be  left  to  profes¬ 
sionals  or  third-rate  men.  The  truth  is  that  the  State  has 
shrivelled  up.  It  retains  its  old  legal  powers  over  the  citi¬ 
zens,  its  old  legal  rights  as  against  the  central  government. 
But  it  does  not  interest  its  citizens  as  it  once  did.  Men  do 
not  now  say,  like  Ames  in  1782,  that  their  State  is  their 
country.  And  as  the  central  government  overshadows  it  m 
one  direction,  so  the  great  cities  have  encroached  upon  it  m 
another.  The  population  of  a  single  city  is  sometimes  a 
fourth  or  a  fifth  part  of  the  whole  population  of  the  State; 
and  city  questions  interest  this  population  more  than  State 
questions  do;  city  officials  have  begun  to  rival  or  even  to 

dwarf  State  officials. 


CHAPTER  XLV 

STATE  POLITICS 


In  the  last  preceding  chapters  I  have  attempted  to  describe 
fiist  the  structure  of  the  machinery  of  State  governments,  and 
then  this  machinery  in  motion  as  well  as  at  rest,  —  that  is  to 
say,  the  actual  working  of  the  various  departments  in  their 
relations  to  one  another.  We  may  now  ask,  What  is  the  mo¬ 
tive  power  which  sets  and  keeps  these  wheels  and  pistons 
going  ?  What  is  the  steam  that  drives  the  machine  ? 

The  States  evidently  present  some  singular  conditions  for 
the  development  of  a  party  system.  They  are  self-governing 
communities  with  large  legislative  and  administrative  powers, 
existing  inside  a  much  greater  community  of  which  they  are 
for  many  purposes  independent.  They  must  have  parties,  and 
this  community,  the  Federal  Union,  has  also  parties.  What  is 
the  relation  of  the  one  set  of  parties  to  the  other  ? 

There  are  three  kinds  of  relations  possible,  viz. : _ 

Fach  State  might  have  a  party  of  its  own,  entirely  uncon¬ 
nected  with  the  National  parties,  but  created  by  State  issues  — 
i.e.  advocating  or  opposing  measures  which  fall  within  the 
exclusive  competence  of  the  State. 

Each  State  might  have  parties  which,  while  based  upon  State 
issues,  were  influenced  by  the  National  parties,  and  in  some 
sort  of  affiliation  with  the  latter. 

The  paities  in  each  State  might  be  merely  local  subdivisions 
of  the  National  parties,  the  National  issues  and  organizations 
swallowing  up,  or  rather  pushing  aside,  the  State  issues  and 
the  organizations  formed  to  deal  with  them. 

The  nature  of  the  State  governments  would  lead  us  to  expect 
to  find  the  first  of  these  relations  existing.  The  sphere  of  the 
State  is  different,  some  few  topics  of  concurrent  jurisdiction 
excepted,  from  that  of  the  National  government.  What  the 
State  can  deal  with,  the  National  government  cannot  touch. 
What  the  National  government  can  deal  with  lies  beyond  the 

387 


388 


THE  STATE  GOVERNMENTS 


PART  II 


province  of  the  State.  The  State  governor  and  legislature  are 
elected  without  relation  to  the  President  and  Congress,  and 
when  elected  have  nothing  to  do  with  those  authorities.  Hence 
a  question  fit  to  be  debated  and  voted  upon  in  Congress  can 
seldom  be  a  question  fit  to  be  also  debated  and  voted  upon  in  a 
State  legislature,  and  the  party  formed  for  advocating  its  pas¬ 
sage  through  Congress  will  have  no  scope  for  similar  action 
within  a  State,  while  on  the  other  hand  a  State  party,  seeking 
to  carry  some  State  law,  will  have  no  motive  for  approaching 
Congress,  which  can  neither  help  it  nor  hurt  it.  The  great 
questions  which  have  divided  the  Union  since  its  foundation, 
and  on  which  National  parties  have  been  based,  have  been  ques¬ 
tions  of  foreign  policy,  of  the  creation  of  a  National  bank,  of 
a  protective  tariff,  of  the  extension  of  slavery,  of  the  recon¬ 
struction  of  the  South  after  the  war.  With  none  of  these  had 
a  State  legislature  any  title  to  deal :  all  lay  within  the  Federal 
sphere.  So  at  this  moment  the  questions  of  currency  and  tariff 
reform,  which  are  among  the  most  important  questions  before 
the  country,  are  outside  the  province  of  the  State  governments. 
We  might  therefore  expect  that  the  State  parties  would  be  as 
distinct  from  the  National  parties  as  are  the  State  governments 
from  the  Federal. 

The  contrary  has  happened.  The  National  parties  have  en¬ 
gulfed  the  State  parties.  The  latter  have  disappeared  abso¬ 
lutely  as  independent  bodies,  and  survive  merely  as  branches 
of  the  National  parties,  working  each  in  its  own  State  for  the 
tenets  and  purposes  which  a  National  party  professes  and  seeks 
to  attain.  So  much  is  this  the  case  that  one  may  say  that  a 
State  party  has  rarely  any  marked  local  colour,  that  it  is  seldom 
and  then  but  slightly  the  result  of  a  compromise  between  State 
issues  and  National  issues,  such  as  I  have  indicated  in  suggest¬ 
ing  the  second  form  of  possible  relation.  The  National  issues 
have  thrown  matters  of  State  competence  entirely  into  the 
shade,  and  have  done  so  almost  from  the  foundation  of  the 
Republic.  The  local  parties  which  existed  in  1789  in  most  or 
all  of  the  States  were  soon  absorbed  into  the  Federalists  and 
Democratic  Republicans  who  sprang  into  life  after  the  adop¬ 
tion  of  the  Federal  Constitution. 

The  results  of  this  phenomenon  have  been  so  important  that 
we  may  stop  to  examine  its  causes. 


CHAP.  XLV 


STATE  POLITICS 


389 


Within  four  years  from  their  origin,  the  strife  of  the  two 

t7qo°Hn  isT^eS  beCame  inteuse  over  the  whole  Union. 
Piom  1<  9o  till  181o  grave  issues  of  foreign  policy,  complicated 

with  issues  of  domestic  policy,  stirred  men  to  fierce  passion  and 

strenuous  effort.  State  business,  being  more  commonplace,  ex- 

1®ss  ^ee!"lgl  a^akenm§  110  interest  outside  State  bounds 
nes,  fell  into  the  background.  The  leaders  who  won  fame  and 

followers  were  National  leaders  ;  and  a  leader  came  to  care  for 
his  influence  within  his  State  chiefly  as  a  means  of  gaining 
strength  in  the  wider  National  field.  Even  so  restlessly  activf 
and  versatile  a  people  as  the  Americans  cannot  feel  warmly 
about  two  sets  of  diverse  interests  at  the  same  time,  cannot 
cieate  and  work  simultaneously  two  distinct  and  unconnected 
party  organizations.  The  State,  therefore,  had,  to  use  the 
transatlantic  phrase,  “to  take  the  back  seat.”  Before  1815 
the  process  was  complete ;  the  dividing  lines  between  parties 
m  every  State  were  those  drawn  by  National  questions.  And 
from  1827  down  to  1877  the  renewed  keenness  of  party  war- 
tare  kept  these  parties  constantly  on  the  stretch,  and  forced 
them  to  use  all  the  support  they  could  win  in  a  State  for  the 
purposes  of  the  National  struggle.  ■-«- 

There  was  one  way  in  which  predominance  in  a  State  could 
be  so  directly  used.  The  Federal  senators  are  chosen  by  the 
State  legislatures.  The  party  therefore  which  gains  a  majority 
in  the  State  legislature  gains  two  seats  in  the  smaller  and  more 
powerful  branch  of  Congress.  As  parties  in  Congress  are  gen¬ 
erally  pretty  equally  balanced,  this  advantage  is  well  worth 
fighting  for,  and  is  a  constant  spur  to  the  efforts  of  National 
politicians  to  carry  the  State  elections  in  a  particular  State. 
Besides,  m  America,  above  all  countries,  nothing  succeeds  like 
success ;  and  in  each  State  the  party  which  carries  the  State 
elections  is  held  likely  to  carry  the  elections  for  the  National 
House  of  Eepresentatives  and  for  the  President  also 

Moreover,  there  are  the  offices.  The  Federal  offices  in  each 
State  are  very  numerous.  They  are  in  the  gift  of  whichever 
.National  party  happens  to  be  in  power,  i.e.  counts  among  its 
members  the  President  for  the  time  being.  He  bestows  them 
upon  those  who  in  each  State  have  worked  hardest  for  the 
National  party  there.  Thus  the  influence  of  Washington  and 
its  presiding  deities  is  everywhere  felt,  and  even  the  party 


390 


THE  STATE  GOVERNMENTS 


PART  II 


which  is  in  a  minority  in  a  particular  State,  and  therefore  loses 
its  share  of  the  State  offices,  is  cheered  and  fed  by  morsels  of 
patronage  from  the  National  table.  The  National  parties  are  in 
fact  all-pervasive,  and  leave  little  room  for  the  growth  of  any 
other  groupings  or  organizations.  A  purely  State  party,  indif¬ 
ferent  to  National  issues,  would,  if  it  were  started  now,  have  no 
support  from  outside,  would  have  few  posts  to  bestow,  because 
the  State  offices  are  neither  numerous  nor  well  paid,  could  have 
no  pledge  of  permanence  such  as  the  vast  mechanism  of  the 
National  parties  provides,  would  offer  little  prospect  of  aiding 
its  leaders  to  win  wealth  or  fame  in  the  wider  theatre  of  Con¬ 
gress. 

Accordingly  the  National  parties  have  complete  possession 
of  the  field.  In  every  State  from  Maine  to  Texas  all  State 
elections  for  the  governorship  and  other  offices  are  fought  on 
their  lines;  all  State  legislatures  are  divided  into  members 
belonging  to  one  or  other  of  them.  Every  trial  of  strength 
in  a  State  election  is  assumed  to  presage  a  similar  result  in  a 
National  election.  Every  State  office  is  deemed  as  fitting  a 
reward  for  services  to  the  National  party  as  for  services  in 
State  contests.  In  fact  the  whole  machinery  is  worked  exactly 
as  if  the  State  were  merely  a  subdivision  of  the  Union  for  elec¬ 
toral  purposes.  Yet  nearly  all  the  questions  which  come 
before  State  legislatures  have  nothing  whatever  to  do  with  the 
tenets  of  the  National  parties,  while  votes  of  State  legislatures, 
except  in  respect  of  the  choice  of  senators,  can  neither  advance 
nor  retard  the  progress  of  any  cause  which  lies  within  the  com¬ 
petence  of  Congress. 

How  has  this  system  affected  the  working  of  the  State  gov¬ 
ernments,  and  especially  of  their  legislatures  ? 

It  has  prevented  the  growth  within  a  State  of  State  parties 
addressing  themselves  to  the  questions  which  belong  to  its 
legislature,  and  really  affect  its  welfare. 

The  natural  source  of  a  party  is  a  common  belief,  a  common 
aim  and  purpose.  Eor  this  men  league  themselves  together, 
and  agree  to  act  in  concert.  A  State  party  ought  therefore  to 
be  formed  out  of  persons  who  desire  the  State  to  do  something, 
or  not  to  do  it;  to  pass  such  and  such  a  law,  to  grant  money  to 
such  and  such  an  object.  It  is,  however,  formed  with  reference 
to  no  such  aim  or  purpose,  but  to  matters  which  the  State  can- 


CHAP.  XLV 


STATE  POLITICS 


391 


not  influence.  Hence  a  singular  unreality  in  the  State  parties. 
In  most  of  the  legislatures  as  well  as  through  the  electoral 
districts  they  cohere  very  closely.  But  this  cohesion  is  of  no 
service  or  significance  for  nine-tenths  of  the  questions  that 
come  before  the  legislature  for  its  decision,  seeing  that  such 
questions  are  not  touched  by  the  platform  of  either  party. 
Party,  therefore,  does  not  fulfil  its  legitimate  ends.  It  does 
not  produce  the  co-operation  of  leaders  in  preparing,  of  followers 
in  supporting,  a  measure  or  line  of  policy.  It  does  not  secure 
the  keen  criticism  by  either  side  of  the  measures  or  policy 
advocated  by  the  other.  It  is  an  artificial  aggregation  of  per¬ 
sons  linked  together  for  purposes  unconnected  with  the  work 
they  have  to  do. 

This  state  of  things  may  seem  to  possess  the  advantage  of 
permitting  questions  to  be  considered  on  their  merits,  apart 
from  that  spirit  of  faction  which  disposes  the  men  on  one  side 
to  reject  a  proposal  of  the  other  side  on  the  score,  not  of  its 
demerits,  but  of  the  quarter  it  proceeds  from.  Such  an  advan¬ 
tage  would  certainly  exist  if  members  were  elected  to  the  State 
legislatures  irrespective  of  party,  if  the  practice  was  to  look 
out  for  good  men  who  would  manage  State  business  prudently 
and  pass  useful  laws.  This,  however,  is  not  the  practice. 
The  strength  of  the  National  parties  prevents  it.  Every  mem¬ 
ber  is  elected  as  a  party  man;  and  the  experiment  of  legis¬ 
latures  working  without  parties  has  as  little  chance  of  being 
tried  in  the  several  States  as  in  Congress  itself.  There  is  yet 
another  benefit  which  the  plan  seems  to  promise.  The  State 
legislatures  may  seem  a  narrow  sphere  for  an  enterprising 
genius,  and  their  work  uninteresting  to  a  superior  mind.  But 
if  they  lead  into  the  larger  field  of  National  politics,  if  distinc¬ 
tion  in  them  opens  the  door  to  a  fame  and  power  extending 
over  the  country,  able  men  will  seek  to  enter  and  to  shine  in 
the  legislatures  of  the  States.  This  is  the  same  argument  as 
is  used  by  those  who  defend  the  practice,  now  general  in  Eng¬ 
land,  of  fighting  municipal  and  other  local  elections  on  party 
lines. 

It  is,  however,  very  doubtful  if  the  American  legislatures 
gain  in  efficiency  by  having  only  party  men  in  them,  and 
whether  the  elections  would  be  any  worse  cared  for  if  party 
was  a  secondary  idea  in  the  voters’  minds.  Already  these 


392 


THE  STATE  GOVERNMENTS 


PART  II 


elections  are  entirely  in  the  hands  of  party  managers,  to  whom 
intellect  and  knowledge  do  not  commend  an  aspirant,  any  more 
than  does  character.  Experience  in  a  State  legislature  cer¬ 
tainly  gives  a  politician  good  chances  of  seeing  behind  the 
scenes,  and  makes  him  familiar  with  the  methods  employed 
by  professionals.  But  it  affords  few  opportunities  for  distinc¬ 
tion  in  the  higher  walks  of  public  life,  and  it  is  as  likely  to 
lower  as  to  raise  his  aptitude  for  them.  However,  a  good 
many  men  find  their  way  into  Congress  through  the  State 
legislatures  —  though  it  is  no  longer  the  rule  that  persons 
chosen  Federal  senators  by  those  bodies  must  have  served  in 
them  —  and  perhaps  the  average  capacity  of  members  is  kept 
up  by  the  presence  of  persons  who  seek  to  use  the  State  legis¬ 
lature  as  a  stepping-stone  to  something  further. 

It  is,  however,  obviously  impossible  to  treat  as  party  matters 
many  of  the  questions  that  come  before  the  legislatures.  Local 
and  personal  bills,  which,  it  will  be  remembered,  occupy  by  far 
the  larger  part  of  the  time  and  labours  of  these  bodies,  do  not 
fall  within  party  lines  at  all.  The  only  difference  the  party 
system  makes  to  them  is  that  a  party  leader  who  takes  up  such 
a  bill  has  exceptional  facilities  for  putting  it  through,  and  that 
a  district  which  returns  a  member  belonging  to  the  majority 
has  some  advantage  when  trying  to  secure  a  benefit  for  itself. 
It  is  the  same  with  appropriations  of  State  funds  to  any  local 
purpose.  Members  use  their  party  influence  and  party  affilia¬ 
tions;  but  the  advocacy  of  such  schemes  and  opposition  to 
them  have  comparatively  little  to  do  with  party  divisions,  and 
it  constantly  happens  that  men  of  both  parties  are  found 
combining  to  carry  some  project  by  which  they  or  their  con¬ 
stituents  will  gain.  Of  course  the  less  reputable  a  member  is, 
the  more  apt  will  he  be  to  enter  into  “  Bings  ”  which  have 
nothing  to  do  with  politics  in  their  proper  sense,  the  more 
ready  to  scheme  with  any  trickster,  to  whichever  party  he 
adheres. 

Of  measures  belonging  to  what  may  be  called  genuine  legis¬ 
lation,  i.e.  measures  for  improving  the  general  law  and  admin¬ 
istration  of  the  State,  some  are  so  remote  from  any  party  issue, 
and  so  unlikely .  to  enure  to  the  credit  of  either  party,  that 
they  are  considered  on  their  merits.  A  bill,  for  instance,  for 
improving  the  State  lunatic  asylums,  or  forbidding  lotteries, 


CIIAP.  XLV 


STATE  POLITICS 


393 


would  have  nothing  either  to  hope  or  fear  from  party  action. 
It  would  be  introduced  by  some  member  who  desired  reform 
for  its  own  sake,  and  would  be  passed  if  this  member,  having 
convinced  the  more  enlightened  among  his  colleagues  that 
it  would  do  good,  or  his  colleagues  generally  that  the  people 
wished  it,  could  overcome  the  difficulties  which  the  pressure 
of  a  crowd  of  competing  bills  is  sure  to  place  in  its  way. 
Other  public  measures,  however,  may  excite  popular  feeling, 
may  be  demanded  by  one  class  or  section  of  opinion  and 
resisted  by  another.  Bills  dealing  with  the  sale  of  intoxi¬ 
cants,  or  regulating  the  hours  of  labour,  or  attacking  railway 
companies,  or  prohibiting  the  sale  of  oleomargarine  as  butter, 
are  matters  of  such  keen  interest  to  some  one  section  of  the 
population,  that  a  party  will  gain  support  from  many  citizens 
by  espousing  them,  and  may  possibly  estrange  others.  Hence, 
though  such  bills  have  rarely  any  connection  with  the  tenets 
of  either  party,  it  is  worth  the  while  of  a  party  to  win  votes 
by  throwing  its  weight  for  or  against  them,  according  as  it 
judges  that  there  is  more  to  gain  by  taking  the  one  course  or 
the  other. 

Is  there  then  no  such  thing  as  a  real  State  party,  agitating 
or  working  solely  within  State  limits,  and  inscribing  on  its 

banner  a  principle  or  project  which  State  legislation  can 
advance  ? 

Such  a  party  does  sometimes  arise.  In  California,  for  in¬ 
stance,  there  has  long  been  strong  feeling  against  the  Chinese, 
and  a  desire  to  exclude  them.  Both  Republicans  and  Demo¬ 
crats  were  affected  by  the  feeling,  and  fell  in  with  it.  But 
there  sprang  up  fifteen  years  ago  a  third  party,  which  claimed 
to  be  specially  “  anti-Mongolian, : ”  while  also  attacking  capital¬ 
ists  and  railways  5  and  it  lasted  for  some  time,  confusing  the 
politics  of  the  State.  Questions  affecting  the  canals  of  the 
State  became  at  one  time  a  powerful  factor  in  the  parties  of 
New  York.  In  Virginia  the  question  of  repudiating  the  State 
debt  gave  birth  a  few  years  ago  to  a  party  which  called  itself 
the  “  Readjusters, : ”  and  by  the  help  of  Negro  votes  carried  the 
State  at  several  elections.  In  some  of  the  North-western 
States  the  farmers  associated  themselves  in  societies  called 
“  Granges/’  purporting  to  be  formed  for  the  promotion  of 
agriculture,  and  created  a  Granger  party  which  secured  drastic 


394 


THE  STATE  GOVERNMENTS 


PART  II 


legislation  against  tlie  railroad  companies  and  other  so-called 
monopolists.  And  in  most  States  there  now  exists  an  active 
Prohibitionist  party,  which  agitates  for  the  strengthening  and 
better  enforcement  of  laws  restricting  or  forbidding  the  sale 
of  intoxicants.  It  deems  itself  also  a  National  party,  since  it 
has  an  organization  which  covers  a  great  part  of  the  Union. 
Bnt  its  operations  are  far  more  active  in  the  States,  because 
the  liquor  traffic  belongs  to  State  legislation.  Since,  however, 
it  can  rarely  secure  many  members  in  a  State  legislature  it 
acts  chiefly  by  influencing  the  existing  parties,  and  f lightening 
them  into  pretending  to  meet  its  wishes. 

All  these  groups  or  factions  were  or  are  associated  on  the 
basis  of  some  doctrine  or  practical  proposal  which  they  put 
forward.  But  it  sometimes  also  happens  that,  without  any 
such  basis,  a  party  is  formed  in  a  State  inside  one  of  the 
regular  National  parties  ;  or,  in  other  words,  that  the  National 
party  in  the  State  splits  up  into  two  factions,  probably  more 
embittered  against  each  other  than  against  the  other  regular 
party.  Such  State  factions,  for  they  hardly  deserve  to  be 
called  parties,  generally  arise  from,  or  soon  become  coloured 
by,  the  rivalries  of  leaders,  each  of  whom  draws  a  certain 

numbers  of  politicians  with  him. 

It  will  be  seen  from  this  fact,  as  well  as  from  others  given 
in  the  preceding  chapter,  that  the  dignity  and  magnitude  of 
State  politics  have  declined.  They  have  become  more  pacific 
in  methods,  but  less  serious  and  more  personal  in  their  aims. 
In  old  days  the  State  had  real  political  struggles,  in  which 
men  sometimes  took  up  arms.  There  was  a  rebellion  in  Massa¬ 
chusetts  in  1786-7,  which  it  needed  some  smart  fighting  to 
put  down,  and  another  in  Bhode  Island  in  1842,  due  to  the 
discontent  of  the  masses  with  the  then  existing  Constitution. 
The  battles  of  this  generation  are  fought  at  the  polling-booths, 
though  sometimes  won  in  the  rooms  where  the  votes  are 
counted  by  partisan  officials.  That  heads  are  counted  instead 
of  being  broken  is  no  doubt  an  improvement.  But  these 
struggles  do  not  always  stir  the  blood  of  the  people  as  those 
of  the  old  time  did :  they  seem  to  evoke  less  patriotic  interest 
in  the  State,  less  public  spirit  for  securing  her  good  govern- 

i  Congress  has  of  course  power  to  impose,  and  has  imposed,  an  excise  upon 
liquor,  but  this  is  far  from  meeting  the  demands  of  the  temperance  party. 


CHAP.  XLV 


STATE  POLITICS 


395 


raent.  This  change  does  not  necessarily  indicate  a  feebler 
sense  of  political  duty.  It  is  due  to  that  shrivelling  up  of 
the  State  to  which  I  referred  in  last  chapter. 

In  saying  this  I  do  not  mean  to  withdraw  or  modify  what 
was  said,  in  an  earlier  chapter,  of  the  greatness  of  an  Ameri¬ 
can  State,  and  the  attachment  of  its  inhabitants  to  it.  Those 
propositions  are,  I  believe,  true  of  a  State  as  compared  to  any 
local  division  of  any  European  country,  the  cantons  of  Swit¬ 
zerland  excepted.  I  am  here  speaking  of  a  State  as  compared 
with  the  nation,  and  of  men’s  feelings  towards  their  State 
to-day  as  compared  with  the  feelings  of  a  century  ago.  I  am, 
moreover,  speaking  not  so  much  of  sentimental  loyalty  to  the 
State,  considered  as  a  whole,  for  this  is  still  strong,  but  of  the 
practical  interest  taken  in  its  government.  Even  in  Great 
Britain  many  a  man  is  proud  of  his  city,  of  Edinburgh  say,  or 
of  Manchester,  who  takes  only  the  slenderest  interest  in  the 
management  of  its  current  business. 

We  may  accordingly  say  that  the  average  American  voter, 
belonging  to  the  labouring  or  farming  or  shopkeeping  class, 
troubles  himself  little  about  the  conduct  of  State  business. 
He  votes  the  party  ticket  at  elections  as  a  good  party  man, 
and  is  pleased  when  his  party  wins.  When  a  question  comes 
up  which  interests  him,  like  that  of  canal  management,  or  the 
regulation  of  railway  rates,  or  a  limitation  of  the  hours  of 
labour,  he  is  eager  to  use  his  vote,  and  watches  what  passes  in 
the  legislature.  He  is  sometimes  excited  over  a  contest  for 
the  governorship,  and  if  the  candidate  of  the  other  party  is  a 
stronger  and  more  honest  man,  may  possibly  desert  his  party 
on  that  one  issue.  But  in  ordinary  times  he  follows  the  pro¬ 
ceedings  of  the  legislature  so  little  that  an  American  humour¬ 
ist,  describing  the  initial  stages  of  dotage,  observes  that  the 
poor  old  man  took  to  filing  the  reports  of  the  debates  in  his 
State  legislature.  The  politics  which  the  voter  reads  by  pref¬ 
erence  are  National  politics ;  and  especially  whatever  touches 
the  next  presidential  election.  In  State  contests  that  which 
chiefly  fixes  his  attention  is  the  influence  of  a  State  victory  on 
an  approaching  National  contest. 

The  more  educated  and  thoughtful  citizen,  especially  in  great 
States  like  New  York  and  Pennsylvania,  is  apt  to  be  disgusted 
by  the  sordidness  of  many  State  politicians  and  the  pettiness. 


896 


THE  STATE  GOVERNMENTS 


PART  II 


of  most.  He  regards  Albany  and  Harrisburg  much  as  he  re¬ 
gards  a  wasp’s  nest  in  one  of  the  trees  of  his  suburban  garden. 
The  insects  eat  his  fruit,  and  may  sting  his  children ;  but  it  is 
too  much  trouble  to  set  up  a  ladder  and  try  to  reach  them. 
Some  public-spirited  young  men  have,  however,  occasionally 
thrown  themselves  into  the  muddy  whirlpool  of  the  New  York 
legislature,  chiefly  for  the  sake  of  carrying  Acts  for  the  better 
government  of  cities.  When  the  tenacity  of  such  men  proves 
equal  to  their  courage,  they  gain  in  time  the  active  support  of 
those  who  have  hitherto  stood  aloof,  regarding  State  politics 
as  a  squabble  over  offices  and  jobs.  By  the  help  of  the  press 
they  are  sometimes  able  to  carry  measures  such  as  an  im¬ 
proved  Ballot  Act,  or  an  act  for  checking  expenditure  at  elec¬ 
tions,  which  is  not  only  valuable  in  their  own  State  but  sets 
an  example  which  other  States  are  apt  to  follow. 

A  European  observer,  sympathetic  with  the  aims  of  the 
reformers,  is  inclined  to  think  that  the  battle  for  honest  gov¬ 
ernment  ought  to  be  fought  everywhere,  in  State  legislatures 
and  city  councils  as  well  as  in  the  National  elections  and  in 
the  press,  and  is  at  first  surprised  that  so  much  effort  should 
be  needed  to  secure  what  all  good  citizens,  to  whichever  party 
they  belong,  might  be  expected  to  work  for.  But  he  would  be 
indeed  a  self-confident  European  who  should  fancy  he  had 
discovered  anything  which  had  not  already  occurred  to  his 
shrewd  American  friends;  and  the  longer  such  an  observer 
studies  the  problem,  the  better  does  he  learn  to  appreciate  the 
difficulties  which  the  system  of  party  organization  throws  iu 
the  way  of  all  reforming  efforts. 


CHAPTER  XL VI 


THE  TERRITORIES 

Of  the  3,501,404  square  miles  which  constitute  the  area  of 
the  United  States,  2,667,535  are  included  within  the  bounds 
of  the  forty-five  States  whose  government  has  been  described 
in  the  last  preceding  chapters.  The  833,899  square  miles 
which  remain  fall  into  the  three  following  divisions:  — 


Three  organized  Territories,  viz. :  —  Sq.  Miles. 

Arizona,  New  Mexico,  Oklahoma .  274,630 

Two  unorganized  Territories,  viz. :  — 

Alaska .  631,409 

Indian  Territory,  west  of  Arkansas . .  .  31,400 

The  Federal  District  of  Columbia .  70 


Of  these  the  three  latter  may  be  dismissed  in  a  word  or  two. 
The  District  of  Columbia  is  a  piece  of  land  set  apart  to  con¬ 
tain  the  city  of  Washington,  which  is  the  seat  of  the  Federal 
government.  It  is  governed  by  three  commissioners  appointed 
by  the  President,  and  has  no  local  legislature  nor  municipal 
government,  the  only  legislative  authority  being  Congress. 

Alaska  (population  in  1890,  31,795,  of  whom  4303  were 
whites  and  23,274  Indians)  and  the  Indian  Territory  are 
also  under  the  direct  authority  of  officers  appointed  by  the 
President  and  of  laws  passed  by  Congress.  Both  are  chiefly 
inhabited  by  Indian  tribes,  some  of  which,  however,  in  the 
Indian  Territory,  and  particularly  the  Cherokees,  have  made 
considerable  progress  in  civilization.1  Neither  region  is 

1  There  are  five  civilized  tribes  in  this  Territory,  Cherokees,  Choctaws, 
Chickasaws,  Creeks,  and  Seminoles.  “  Each  tribe  manages  its  own  affairs 
under  a  Constitution  modelled  upon  that  of  the  United  States.  Each  has  a 
common  school  system,  including  schools  for  advanced  instruction,  all  sup¬ 
ported  by  the  Indians  themselves.  The  agent  of  the  National  Indian  Defence 
Association  says  that  there  is  not  in  the  Cherokee  Nation  a  single  Indian  of 
either  sex  over  fifteen  years  of  age  who  cannot  read  or  write.”  —  Report  of  the 
U.  S.  Commissioner  of  Education,  1886.  The  census  of  1890  gives  the  total  num¬ 
bers  of  these  tribes  at  66,289,  of  whom  52,065  are  pure  Indians.  The  total  num¬ 
ber  of  Indians  in  the  United  States  (excluding  Alaska)  is  returned  at  249,273. 

397 


398 


THE  STATE  GOVERNMENTS 


PART  II 


likely  for  a  long  time  to  come  to  receive  regular  political  insti¬ 
tutions. 

Until  1889,  the  organized  Territories,  eight  in  number, 
formed  a  broad  belt  of  country  extending  from  Canada  on  the 
north  to  Mexico  on  the  south,  and  separating  the  States  of 
the  Mississippi  valley  from  those  of  the  Pacific  slope.  In  that 
year  Congress  passed  acts  under  which  three  of  them,  Dakota 
(which  divided  itself  into  North  Dakota  and  South  Dakota), 
Montana,  and  Washington  became  entitled  to  be  admitted  as 
States ;  while  in  1890  two  others  (Idaho  and  Wyoming)  and  in 
1894  Utah  also  were  similarly  permitted  to  become  States. 
These  have  now-  (1896)  enacted  constitutions  and  thereby 
organized  themselves  as  States.  They  are  the  seven  States  of 
North  Dakota,  South  Dakota,  Montana,  Washington,  Idaho, 
Wyoming,  and  Utah.  To  the  two  remaining  Territories  one 
has  been  added  by  the  carving  out  of  Oklahoma,  in  1890,  from 
the  Indian  Territory.  These  three  require  some  description, 
because  they  present  an  interesting  form  of  autonomy  or  local 
self-government,  differing  from  that  which  exists  in  the  several 
States,  and  in  some  points  more  akin  to  that  of  the  self-govern¬ 
ing  colonies  of  Great  Britain.  This  form  has  in  each  Terri¬ 
tory  been  created  by  Federal  statutes,  beginning  with  the  great 
ordinance  for  the  government  of  the  Territory  of  the  United 
States  north-west  of  the  river  Ohio,  passed  by  the  Congress  of 
the  Confederation  in  1787.  Since  that  year  many  Territories 
have  been  organized,  by  different  statutes  and  on  different 
plans,  out  of  the  western  dominions  of  the  United  States, 
under  the  general  power  conferred  upon  Congress  by  the 
Federal  Constitution  (Art.  iv.  §  3)  ;  and  all  but  the  above- 
mentioned  three  have  now  become  States.  At  first  local  legis¬ 
lative  power  was  vested  in  the  governor  and  the  judges ;  it  is 
now  exercised  by  an  elective  legislature.  The  present  organi¬ 
zation  of  the  three  that  remain  is  in  most  respects  identical ; 
and  in  describing  it  I  shall  ignore  minor  differences. 

The  fundamental  law  of  every  Territory,  as  of  every  State, 
is  the  Federal  Constitution;  but  whereas  every  State  has  also 
its  own  popularly  enacted  State  constitution,  the  Territoiies 
are  not  regulated  by  any  similar  instruments,  which  for  them 
are  replaced  by  the  Federal  statutes  establishing  their  govern¬ 
ment  and  prescribing  its  form.  However,  some  Territories 


CHAP.  XLVI 


THE  TERRITORIES 


399 


have  created  a  sort  of  rudimentary  constitution  by  enacting 
a  Bill  of  Rights. 

In  every  Territory,  as  in  every  State,  the  executive,  legisla¬ 
tive,  and  judicial  departments  are  kept  distinct.  The  execu¬ 
tive  consists  of  a  governor  appointed  for  four  years  by  the 
President  of  the  United  States,  with  the  consent  of  the  Sen¬ 
ate,  and  removable  by  the  President,  together  with  a  secre¬ 
tary,  treasurer,  auditor,  and  usually  also  a  superintendent  of 
public  instruction  and  a  librarian.  The  governor  commands 
the  militia,  and  has  a  veto  upon  the  acts  of  the  legislature, 
which,  however,  may  (except  in  Arizona)  be  overridden  by  a 
two-thirds  majority  in  each  house.  He  is  responsible  to  the 
Federal  government,  and  reports  yearly  to  the  President  on 
the  condition  of  the  Territory,  often  making  his  report  a  sort 
of  prospectus  in  which  the  advantages  which  his  dominions 
offer  to  intending  immigrants  are  fondly  set  forth.  He  also 
sends  a  message  to  the  legislature  at  the  beginning  of  each 
session.  Important  as  the  post  of  governor  is,  it  is  often  be¬ 
stowed  as  a  mere  piece  of  party  patronage,  with  no  great  regard 
to  the  fitness  of  the  appointee. 

The  legislature  is  composed  of  two  Houses,  a  Council  of 
twelve  (in  Oklahoma  thirteen)  persons,  and  a  House  of  Repre¬ 
sentatives  of  twenty-four  (in  Oklahoma  twenty-six)  persons, 
elected  by  districts.  Each  is  elected  by  the  voters  of  the  Ter¬ 
ritory  for  two  years,  and  sits  only  once  in  that  period.  The 
session  is  limited  (by  Federal  statutes)  to  sixty  days,  and 
the  salary  of  a  member  is  $4  per  day.  The  Houses  work 
much  like  those  in  the  States,  doing  the  bulk  of  their  business 
by  standing  committees,  and  frequently  suspending  their  rules 
to  run  measures  through  with  little  or  no  debate.  The  electo¬ 
ral  franchise  is  left  to  be  fixed  by  Territorial  statute,  but  Fed¬ 
eral  statutes  prescribe  that  every  member  shall  be  resident  in 
the  district  he  represents.  The  sphere  of  legislation  allowed 
to  the  legislature  is  wide,  indeed  practically  as  wide  as  that 
enjoyed  by  the  legislature  of  a  Stale,  but  subject  to  certain 
Federal  restrictions.  It  is  subject  also  to  the  still  more  im¬ 
portant  right  of  Congress  to  annul  or  modify  by  its  own  statutes 
any  Territorial  act.  In  some  Territories  every  act  was  directed 
to  be  submitted  to  Congress  for  its  approval,  and,  if  disap¬ 
proved,  to  be  of  no  effect  ;  in  others  submission  has  not  been 


400 


THE  STATE  GOVERNMENTS 


PART  n 


required.  But  in  all  Congress  may  exercise  without  stint  its 
power  to  override  the  statutes  passed  by  a  Territorial  legis¬ 
lature. 

The  judiciary  consists  of  three  or  more  judges  of  a  Supreme 
Court,  appointed  for  four  years  by  the  President,  with  the 
consent  of  the  Senate  (salary  $3000),  together  with  a  United 
States  district  attorney  and  a  United  States  marshal.  The 
law  they  administer  is  partly  Pederal,  all  Federal  statutes 
being  construed  to  take  effect,  where  properly  applicable,  in 
the  Territories,  partly  local,  created  in  each  Territory  by  its 
own  statutes ;  and  appeals,  where  the  sum  in  dispute  is  above 
a  certain  value,  go  to  the  Supreme  Federal  Court.  Although 
these  courts  are  created  by  Congress  in  pursuance  of  its  gen¬ 
eral  sovereignty —  they  do  not  fall  within  the  provisions  of  the 
Constitution  for  a  Federal  judiciary  —  the  Territorial  legislat¬ 
ure  is  allowed  to  regulate  their  practice  and  procedure.  The 
expenses  of  Territorial  governments  are  borne  by  the  Federal 
Treasury. 

The  Territories  send  neither  senators  nor  representatives  to 
Congress,  nor  do  they  take  part  in  presidential  elections.  The 
House  of  Representatives,  under  a  statute,  admits  a  delegate 
from  each  of  them  to  sit  and  speak,  but  of  course  not  to  vote, 
because  the  right  of  voting  in  Congress  depends  on  the  Fed¬ 
eral  Constitution.  The  position  of  a  citizen  in  a  Territory  is 
therefore  a  peculiar  one.  What  may  be  called  his  private  or 
passive  citizenship  is  complete :  he  has  all  the  immunities  and 
iDenefits  which  any  other  American  citizen  enjoys.  But  the 
public  or  active  side  is  wanting,  so  far  as  the  National  gov¬ 
ernment  is  concerned,  although  complete  for  local  purposes. 
It  may  seem  inconsistent  with  principle  that  citizens  should 
be  taxed  by  a  government  in  whose  legislature  they  are  not 
represented;  but  the  practical  objections  to  giving  the  full 
rights  of  States  to  these  comparatively  rude  communities  out¬ 
weigh  any  such  theoretical  difficulties. 

It  must  moreover  be  remembered  that  a  Territory,  which  may 
be  called  an  inchoate  or  rudimentary  State,  looks  forward  to 
become  a  complete  State.  When  its  population  becomes  equal 
to  that  of  an  average  congressional  district,  its  claim  to  be 
admitted  as  a  State  is  strong,  and  in  the  absence  of  specific 
objections  will  be  granted.  Congress,  however,  has  absolute 


CHAP.  XL VI 


THE  TERRITORIES 


401 


discretion  in  the  matter,  and  often  uses  its  discretion  under  the 
influence  of  partisan  motives.  Nevada  was  admitted  to  be  a 
State  when  its  population  was  only  about  20,000,  mainly  for  the 
sake  of  getting  its  vote  for  the  thirteenth  constitutional  amend¬ 
ment.  It  subsequently  rose  to  62,266,  but  has  now  declined  to 
45,761.  When  Congress  resolves  to  turn  a  Territory  into  a 
State,  it  either  (as  happened  in  the  cases  of  Idaho  and  Wyom¬ 
ing)  passes  an  act  accepting  and  ratifying  a  constitution  already 
made  for  themselves  by  the  people,  and  forthwith  admitting 
the  community  as  a  State,  or  else  passes  what  is  called  an 
Enabling  Act,  under  which  the  inhabitants  elect  a  constitu¬ 
tional  convention,  empowered  to  frame  a  draft  constitution. 
When  this  constitution  has  been  submitted  to  and  accepted  by 
the  voters  of  the  Territory,  the  act  of  Congress  takes  effect : 
the  Territory  is  transformed  into  a  State,  and  proceeds  to 
send  its  senators  and  representatives  to  Congress  in  the  usual 
way.  The  Enabling  Act  may  prescribe  conditions  to  be  fulfilled 
by  the  State  Constitution,  but  has  not  usually  attempted  to 
narrow  the  right  which  the  citizens  of  the  newly  formed  State 
will  enjoy  of  subsequently  modifying  that  instrument  in  any 
way  not  inconsistent  with  the  provisions  of  the  Federal  Con¬ 
stitution.  However,  in  the  case  of  the  Dakotas,  Montana, 
Washington,  Idaho,  and  Wyoming,  the  Enabling  Act  required 
the  conventions  to  make  “by  ordinance  irrevocable  without 
the  consent  of  the  United  States  and  the  people  of  the  said 
States  ”  certain  provisions,  including  one  for  perfect  religious 
toleration  and  another  for  the  maintenance  of  public  schools 
free  from  sectarian  control.  This  the  six  States  have  done 
accordingly.  But  whether  this  requirement  of  the  consent  of 
Congress  would  be  held  binding  if  the  people  of  the  State 
should  hereafter  repeal  the  ordinance,  may  be  doubted. 

The  arrangements  above  described  seem  to  work  well.  Self- 
government  is  practically  enjoyed  by  the  Territories,  despite 
the  supreme  authority  of  Congress,  just  as  it  is  enjoyed  by 
Canada  and  the  Australasian  colonies  of  Great  Britain  despite 
the  legal  right  of  the  British  Parliament  to  legislate  for  every 
part  of  the  Queen’s  dominions.  The  want  of  a  voice  in  Con¬ 
gress  and  in  presidential  elections,  and  the  fact  that  the  gov¬ 
ernor  is  set  over  them  by  an  external  power,  are  not  felt  to  be 
piactical  grievances,  partly  of  course  because  these  young  com- 


402 


PART  II 


THE  STATE  GOVERNMENTS 


munities  are  too  small  and  too  much  absorbed  in  the  work  of 
developing  their  natural  resources  to  be  keenly  interested  in 
National  politics.  Their  local  political  life  much  resembles 
■*-hat  of  the  newer  Western  States.  Both  Democrats  and 
Republicans  have  their  regular  party  organizations,  but  the 
business  of  a  Territorial  legislature  gives  little  opportunity 
for  any  real  political  controversies,  though  abundant  oppoi- 
tunities  for  local  jobbing. 


CHAPTER  XL VII 

LOCAL  GOVERNMENT 


at?  7V  S  f  m  th®  ^mon  has  lts  own  system  of  local  areas 
and  authorities,  created  and  worked  under  its  own  laws ;  and 

lough  these  systems  agree  in  many  points,  they  differ  in  so 
many  others,  that  a  whole  volume  would  be  needed  to  give 
even  a  summary  view  of  their  peculiarities.  All  I  can  here 
attempt  is  to  distinguish  the  leading  types  of  local  govern¬ 
ment  to  be  found  m  the  United  States,  to  describe  the  promi¬ 
nent  features  of  each  type,  and  to  explain  the  influence  which 
the  large  scope  and  popular  character  of  local  administration 
exercise  upon  the  general  life  and  well-being  of  the  American 

Three  types  of  rural  local  government  are  discernible  in 
America.  The  first  is  characterized  by  its  unit,  the  town  or 
township,  and  exists  in  the  six  New  England  States.  The 
second  is  characterized  by  a  much  larger  unit,  the  county, 
and  prevails  in  the  Southern  States.  The  third  combines  some 
features  of  the  first  with  some  of  the  second,  and  may  be 
ed  the  mixed  system.  It  is  found,  under  a  considerable 

Th  Vff°f  forms’  111  tlle  Mlddle  and  North-western  States. 

e  differences  of  these  three  types  are  interesting,  not  only 
because  of  the  practical  instruction  they  afford,  but  also  be-' 
cause  they  spring  from  original  differences  in  the  character  of 
the  colonists  who  settled  along  the  American  coast,  and  in  the 

developed*  U“der  ^  °°mmunities  there  founded  were 

The  first  New  England  settlers  were  Puritans  in  religion 
an  sometimes  inclined  to  republicanism  in  politics.  They 
ere  largely  townsfolk,  accustomed  to  municipal  life  and  to 
s  ry  mee  lr|gs.  They  planted  their  tiny  communities  along 

stoekaT  'V  and  V6  banks  °f  rivers’  ending  them  with 
stockades  for  protection  against  the  warlike  Indians.  Each  • 


403 


404 


PART  II 


THE  STATE  GOVERNMENTS 


was  obliged  to  be  self-sufficing,  because  divided  by  rocks  and 
woods  from  the  others.  Each  had  its  common  pasture  on 
which  the  inhabitants  turned  out  their  cattle,  and  which  offi¬ 
cers  were  elected  to  manage.  Each  was  a  religious  as  well 
as  a  civil  body  politic,  gathered  round  the  church  as  its  centre  ; 
and  the  equality  which  prevailed  in  the  congregation  prevailed 
also  in  civil  affairs,  the  whole  community  meeting  under  a 
president  or  moderator  to  discuss  affairs  of  common  interest. 
Each  such  settlement  was  called  a  town,  or  township,  and 
was  in  fact  a  miniature  commonwealth,  exercising  a  practical 
sovereignty  over  the  property  and  persons  of  its  members  — 
for  there  was  as  yet  no  State,  and  the  distant  home  govern¬ 
ment  scarcely  cared  to  interfere  —  but  exercising  it  on  thor¬ 
oughly  democratic  principles.  Its  centre  was  a  group  ot 
dwellings,  often  surrounded  by  a  fence  or  wall,  but  it  included 
a  rural  area  of  several  square  miles,  over  which  farmhouses 
and  clusters  of  houses  began  to  spring  up  when  the  Indians 
retired.  The  name  “town ”  covered  the  whole  of  this  area, 
which  was  never  too  large  for  all  the  inhabitants  to  come 
together  to  a  central  place  of  meeting.  This  town  organiza¬ 
tion  remained  strong  and  close,  the  colonists  being  men  of 
narrow  means,  and  held  together  in  each  settlement  by  the 
needs  of  defence.  And  though  presently  the  towns  became 
ao-°regated  into  counties,  and  the  legislature  and  governor, 
first  of  the  whole  colony,  and,  after  1776,  of  the  State,  began 
to  exert  their  superior  authority,  the  towns  held  their  grounc , 
and  are  to  this  day  the  true  units  of  political  life  m  Aew 
England,  the  solid  foundation  of  that  well-compacted  structure 
of  self-government  which  European  philosophers  have  admired 
and  the  new  States  of  the  West  have  sought  to  reproduce. 
Till  1821  the  towns  were  the  only  political  corporate  bodies 
in  Massachusetts,  and  till  1857  they  formed,  as  they  still 
form  in  Connecticut,  the  basis  of  representation  m  her 
Assembly,  each  town,  however  small,  returning  at  least  one 
member..  Not  a  little  of  that  robust,  if  somewhat  narrow, 
localism  which  characterizes  the  representative  syst®in  .  ° 
America  is  due  to  this  originally  distinct  and  self-sufficing 
corporate  life  of  the  seventeenth  century  towns. 

Very  different  were  the  circumstances  of  the  Southern  colo- 
*  nies.  The  men  who  went  to  Virginia  and  the  Carolinas  were 


CHAP.  XLVII 


LOCAL  GOVERNMENT 


405 


not  Puritans,  nor  did  they  mostly  go  in  families  and  groups 
of  lamilies  from  the  same  neighbourhood.  Many  were  casual 
adventurers,  often  belonging  to  the  upper  class,  Episcopalians 
in  religion,  and  with  no  such  experience  of,  or  attachment  to, 
local  self-government  as  the  men  of  Massachusetts  or  Con¬ 
necticut.  They  settled  in  a  region  where  the  Indian  tribes 
were  comparatively  peaceable,  and  where  therefore  there  was 
little  need  of  concentration  for  the  purposes  of  defence.  The 
climate  along  the  coast  was  somewhat  too  hot  for  European 
labour,  so  slaves  were  imported  to  cultivate  the  land.  Popu¬ 
lation  was  thinly  scattered;  estates  were  large;  the  soil  was 
fertile  and  soon  enriched  its  owners.  Thus  a  semi-feudal 
society  grew  up,  in  which  authority  naturally  fell  to  the 
landowners,  each  of  whom  was  the  centre  of  a  group  of  free 
dependants  as  well  as  the  master  of  an  increasing  crowd  of 
slaves.  There  were  therefore  comparatively  few  urban  com¬ 
munities,  and  the  life  of  the  colony  took  a  rural  type.  The 
houses  of  the  planters  lay  miles  apart  from  one  another;  and 
when  local  divisions  had  to  be  created,  these  were  made  large 
enough  to  include  a  considerable  area  of  territory  and  number 
of  land-owning  gentlemen.  They  were  therefore  rural  divi¬ 
sions,  counties  framed  on  the  model  of  English  counties. 
Smaller  circumscriptions  there  were,  such  as  hundreds  and 
parishes,  but  the  hundred  died  out,  the  parish  ultimately 
became  a  purely  ecclesiastical  division,  and  the  parish  vestry 
was  restricted  to  ecclesiastical  functions,  while  the  county 
remained  the  practically  important  unit  of  local  administra¬ 
tion,  the  unit  to  which  the  various  functions  of  government 
were  aggregated,’  and  which,  itself  controlling  minor  authori¬ 
ties,  was  controlled  by  the  State  government  alone. 

The  affairs  of  the  county  were  usually  managed  by  a  board 
of  elective  commissioners,  and  not,  like  those  of  the  New  Eng¬ 
land  towns,  by  a  primary  assembly;  and  in  an  aristocratic 
society  the  leading  planters  had  of  course  a  predominating 
influence.  Hence  this  form  of  local  government  was  not  only 
less  democratic,  but  less  stimulating  and  educative  than  that 
which  prevailed  in  the  New  England  States.  Nor  was  the 
Virginian  county,  though  so  much  larger  than  the  New  England 
town,  ever  as  important  an  organism  over  against  the  State. 
It  may  almost  be  said,  that  while  a  New  England  State  is  a 


406 


THE  STATE  GOVERNMENTS 


PART  II 


combination  of  towns,  a  Southern  State  is  from  the  first  an 
administrative  as  well  as  political  whole,  whose  subdivisions, 
the  counties,  had  never  any  truly  independent  life,  but  were 
and  are  mere  subdivisions  for  the  convenient  despatch  of 
judicial  and  financial  business. 

In  the  Middle  States  of  the  Union,  Pennsylvania,  New 
Jersey,  and  New  York,  settled  or  conquered  by  Englishmen 
some  time  later  than  New  England,  the  town  and  town  meet¬ 
ing  did  not  as  a  rule  exist,  and  the  county  was  the  original 
basis  of  organization.  But  as  there  grew  up  no  planting 
aristocracy  like  that  of  Virginia  or  the  Carolinas,  the  course 
of  events  took  in  the  Middle  States  a  different  direction.  As 
trade  and  manufactures  grew,  population  became  denser  than 
in  the  South.  New  England  influenced  them,  and  influenced 
still  more  the  newer  commonwealths  which  arose  in  the  North¬ 
west,  such  as  Ohio  and  Michigan,  into  which  the  surplus 
population  of  the  East  poured.  And  the  result  of  this  influ¬ 
ence  is  seen  in  the  growth  through  the  Middle  and  Western 
States  of  a  mixed  system,  which  presents  a  sort  of  compromise 
between  the  county  system  of  the  South  and  the  town  system 
of  the  North-east.  There  are  great  differences  between  the 
arrangements  in  one  or  other  of  these  Middle  and  Western 
States.  But  it  may  be  said,  speaking  generally,  that  in  them 
the  county  is  relatively  less  important  than  in  the  Southern 
States,  the  township  less  important  than  in  New  England. 
The  county  is  perhaps  to  be  regarded,  at  least  in  New  York, 
Pennsylvania,  and  Ohio,  as  the  true  unit,  and  the  townships 
(for  so  they  are  usually  called)  as  its  subdivisions.  But  the 
townships  are  vigorous  organisms,  which  largely  restrict  the 
functions  of  the  county  authority,  and  give  to  local  govern¬ 
ment,  especially  in  the  North-west,  a  character  generally 
similar  to  that  which  it  wears  in  New  England. 

The  town  is  in  rural  districts  the  smallest  local  circum¬ 
scription.  English  readers  must  be  reminded  that  it  is  a 
rural,  not  an  urban  community,  and  that  the  largest  group 
of  houses  it  contains  may  be  only  what  would  be  called  in 
England  a  hamlet  or  small  village.  Its  area  seldom  exceeds 
five  square  miles;  its  population  is  usually  small,  averaging 
less  than  3000,  but  occasionally  ranges  up  to  13,000,  and 
sometimes  falls  below  200.  It  is  governed  by  an  assembly 


ciiap.  xlvii 


LOCAL  GOVERNMENT 


407 


of  all  qualified  voters  resident  within  its  limits,  which  meets 
at  least  once  a  year,  in  the  spring,  and  from  time  to  time  as 
summoned.  There  are  usually  three  or  four  meetings  each 
year.  Notice  is  required  to  be  given  at  least  ten  days  previ- 
ously,  not  only  of  the  hour  and  place  of  meeting,  but  of  the 
business  to  be  brought  forward.  This  assembly  has  the  power 
both  of  electing  officials  and  of  legislating.  It  chooses  the 
selectmen,  school  committee,  and  executive  officers  for  the 
coming  year;  it  enacts  by-laws  and  ordinances  for  the  regu¬ 
lation  of  all  local  affairs;  it  receives  the  reports  of  the  select¬ 
men  and  the  several  committees,  passes  their  accounts,  hears 
what  sums  they  propose  to  raise  for  the  expenses  of  next  year, 
and  votes  the  necessary  taxation  accordingly,  appropriating 
to  the  various  local  purposes  —  schools,  aid  to  the  poor,  the 
repair  of  highways,  and  so  forth  — the  sums  directed  to  be 
levied.  Its  powers  cover  the  management  of  the  town  lands 
and  other  property,  and  all  local  matters  whatsoever,  including 
police  and  sanitation.  Every  resident  has  the  right  to  make, 
and  to  support  by  speech,  any  proposal.  The  meeting,  which 
is  presided  over  by  a  chairman  called  the  moderator  —  a  name 
recalling  the  ecclesiastical  assemblies  of  the  English  common¬ 
wealth  —  is  held  in  the  town  hall,  if  the  town  possesses  one, 
or  in  the  principal  church  or  schoolhouse,  but  sometimes  in 
the  open  air.  The  attendance  is  usually  good;  the  debates 
sensible  and  practical.  Much  of  course  depends  on  the  char¬ 
acter  and  size  of  the  population.  Where  it  is  of  native 
American  stock,  and  the  number  of  voting  citizens  is  not  too 
great  for  thorough  and  calm  discussion,  no  better  school  of 
politics  can  be  imagined,  nor  any  method  of  managing  local 
affairs  more  certain  to  prevent  jobbery  and  waste,  to  stimulate 
vigilance  and  breed  contentment.  When,  however,  the  town 
meeting  has  grown  to  exceed  seven  or  eight  hundred  persons, 
where  the  element  of  farmers  has  been  replaced  by  that  of 
factory  operatives,  and  still  more  when  any  considerable  sec¬ 
tion  are  strangers,  such  as  the  Irish  or  French  Canadians  who 
have  latterly  poured  into  New  England,  the  institution  works 
less  perfectly,  because  the  multitude  is  too  large  for  debate, 
factions  are  likely  to  spring  up,  and  the  new  immigrants, 
untrained  in  self-government,  become  the  prey  of  wirepullers 
or  petty  demagogues.  The  social  conditions  of  to-day  in  New 


408 


THE  STATE  GOVERNMENTS 


PART  II 


England  are  less  favourable  than  those  which  gave  birth  to  it; 
and  there  are  now  in  the  populous  manufacturing  States  of 
Massachusetts,  Rhode  Island,  and  Connecticut  comparatively 
few  purely  rural  towns,  such  as  those  which  suggested  the 
famous  eulogium  of  Jefferson,  who  eighty  years  ago  desired 
to  see  the  system  transplanted  to  his  own  Virginia:  — 

“Those  wards  called  townships  in  New  England  are  the 
vital  principle  of  their  governments,  and  have  proved  them¬ 
selves  the  wisest  invention  ever  devised  by  the  wit  of  man  for 
the  perfect  exercise  of  self-government,  and  for  its  preserva¬ 
tion.  ...  As  Cato,  then,  concluded  every  speech  with  the 
words  ‘ Carthago  delenda  est ,  ’  so  do  I  every  opinion  with  the 
injunction,  i Divide  the  counties  into  wards. 

The  executive  of  a  town  consists  of  the  selectmen,  from 
three  to  nine  in  number,  usually  either  three,  five,  or  seven. 
They  are  elected  annually,  and  manage  all  the  ordinary  busi¬ 
ness,  of  course  under  the  directions  given  them  by  the  last 
preceding  meeting.  There  is  also  a  town  clerk,  who  keeps 
the  records,  and  minutes  the  proceedings  of  the  meeting,  and 
is  generally  also  registrar  of  births  and  deaths;  a  treasurer; 
assessors,  who  make  a  valuation  of  property  within  the  town 
for  the  purposes  of  taxation;  the  collector,  who  gathers  the 
taxes,  and  divers  minor  officers,  such  as  hog-reeves_  (now 
usually  called  field  drivers),  cemetery  trustees,  library  trus¬ 
tees,  and  so  forth,  according  to  local  needs.  There  is  always 
a  school  committee,  with  sometimes  sub-committees  for  minor 
school  districts  if  the  town  be  a  large  one.  Some  of  these 
officers  and  committees  are  paid  (the  selectmen  usually),  some 
unpaid,  though  allowed  to  charge  their  expenses  actually  in¬ 
curred  in  town  work ;  and  there  has  generally  been  no  difficulty 
in  getting  respectable  and  competent  men  to  undertake  the 
duties.  Town  elections  are  not  professedly  political,  i.e.  they 
are  not  usually  fought  on  party  lines,  though  occasionally 
party  spirit  affects  them,  and  a  man  prominent  in  his  party 
is  more  likely  to  obtain  support. 

Next  above  the  town  stands  the  county.  Its  area  and  popu¬ 
lation  vary  a  good  deal.  It  was  originally  an  aggregation  of 
towns  for  judicial  purposes,  and  is  still  in  the  main  a  judicial 
district  in  and  for  which  civil  and  criminal  courts  are  held, 
some  by  county  judges,  some  by  State  judges,  and  in  and  for 


CHAP.  XI. VII 


LOCAL  GOVERNMENT 


409 


which  certain  judicial  officers  are  elected  by  the  people  at  the 
polls,  who  also  choose  a  sheriff  and  a  clerk.  Police  belongs 
to  the  towns  and  cities,  not  to  the  county  within  which  they 
lie.  The  chief  administrative  officers  are  the  county  com¬ 
missioners  and  county  treasurer.  They  are  salaried  officers, 
and  have  the  management  of  county  buildings,  such  as  court¬ 
houses  and  prisons,  with  power  to  lay  out  new  highways  from 
town  to  town,  to  grant  licences,  estimate  the  amount  of  tax¬ 
ation  needed  to  defray  county  charges,  and  apportion  the 
county  tax  among  the  towns  and  cities  by  whom  it  is  to  be 
levied.  But  except  in  this  last-mentioned  respect  the  county 
authority  has  no  power  over  the  towns,  and  it  will  be  per¬ 
ceived  that  while  the  county  commissioners  are  controlled  by 
the  legislature,  being  limited  by  statute  to  certain  well-defined 
administrative  functions,  there  exists  nothing  in  the  nature 
of  a  county  council  or  other  assembly  with  legislative  func¬ 
tions.  The  functions  of  the  county  are  in  fact  of  small  con¬ 
sequence:  it  is  a  judicial  district  and  a  highway  district  and 
little  more. 

The  system  which  prevails  in  the  Southern  States  need  not 
long  detain  us,  for  it  is  less  instructive  and  has  proved  less 
successful.  Here  the  unit  is  the  county,  except  in  Louisiana, 
where  the  equivalent  division  is  called  a  parish.  The  county 
was  originally  a  judicial  division,  established  for  the  purposes 
of  local  courts,  and  a  financial  one,  for  the  collection  of  State 
taxes.  It  has  now,  however,  generally  received  some  other 
functions,  such  as  the  superintendence  of  public  schools,  the 
care  of  the  poor,  and  the  management  of  roads.  In  the  South 
counties  are  larger  than  in  TSTew  England,  but  not  more  popu¬ 
lous,  for  the  country  is  thinly  peopled.  The  county  officers, 
whose  titles  and  powers  vary  somewhat  in  different  States, 
are  usually  the  board  or  court  of  county  commissioners,  an 
assessor  (who  prepares  the  valuation),  a  collector  (who  gathers 
the  taxes),  a  treasurer,  a  superintendent  of  education,  an  over¬ 
seer  of  roads  —  all  of  course  salaried,  and  now,  as  a  rule, 
elected  by  the  people,  mostly  for  one  or  two  years.  These 
county  officers  have,  besides  the  functions  indicated  by  their 
names,  the  charge  of  the  police  and  the  poor  of  the  county, 
and  of  the  construction  of  public  works,  such  as  bridges  and 
prisons.  The  county  judges  and  the  sheriff,  and  frequently 


410 


THE  STATE  GOVERNMENTS 


PART  II 


the  coroner,  are  also  chosen  by  the  people.  The  sheriff  is 
everywhere  in  America  the  chief  executive  officer  attached  to 
the  judicial  machinery  of  the  county. 

In  these  Southern  States  there  exist  various  local  divisions 
smaller  than  the  counties.  Their  names  and  their  attributions 
vary  from  State  to  State,  but  they  have  no  legislative  authority 
like  that  of  the  town  meeting  of  New  England,  and  their 
officers  have  very  limited  powers,  being  for  most  purposes 
controlled  by  the  county  authorities.  The  most  important 
local  body  is  the  school  committee  for  each  school  district. 
In  several  States,  such  as  Virginia  and  North  Carolina,  we 
now  find  townships,  and  the  present  tendency  seems  in  these 
States  to  be  towards  the  development  of  something  resembling 
the  New  England  town.  It  is  a  tendency  which  grows  with 
the  growth  of  population,  with  the  progress  of  manufactures 
and  of  the  middle  and  industrious  working  class  occupied 
therein,  and  especially  with  the  increased  desire  for  education. 
The  school,  some  one  truly  says,  is  becoming  the  nucleus  of 
local  self-government  in  the  South  now,  as  the  church  was 
in  New  England  two  centuries  ago.  Nowhere,  however,  has 
there  appeared  a  primary  assembly;  while  the  representative 
local  assembly  is  still  in  its  infancy.  Local  authorities  in  the 
South,  and  in  the  States  which,  like  Nevada  and  Oregon,  may 
be  said  to  have  adopted  the  county  system,  are  generally 
executive  officers  and  nothing  more. 

The  third  type  is  less  easy  to  characterize  than  either  of 
the  two  preceding,  and  the  forms  under  which  it  appears  in 
the  Middle  and  North-western  States  are  even  more  various 
than  those  referable  to  the  second  type.  Two  features  mark  it. 
One  is  the  importance  and  power  of  the  county,  which  in  the 
history  of  most  of  these  States  appears  before  any  smaller 
division;  the  other  is  the  activity  of  the  township,1  which  has 
more  independence  and  a  larger  range  of  competence  than 
under  the  system  of  the  South.  Now  of  these  two  features 
the  former  is  the  more  conspicuous  in  one  group  of  States  — 
Pennsylvania,  New  Jersey,  New  York,  Ohio,  Indiana,  Iowa; 
the  latter  in  another  group  —  Michigan,  Illinois,  Wisconsin, 
Minnesota,  the  two  Dakotas,  the  reason  being  that  the  New 

1  Township  is  the  term  most  frequently  used  outside  New  England :  town 
in  New  England. 


CHAP.  XLVII 


LOCAL  GOVERNMENT 


411 


Englanders,  who  were  often  the  largest  and  always  the  most 
intelligent  and  energetic  element  among  the  settlers  in  the 
more  northern  of  these  two  State  groups,  carried  with  them 
their  attachment  to  the  town  system  and  their  sense  of  its 
value,  and  succeeded,  though  sometimes  not  without  a  struggle, 
in  establishing  it  in  the  six  great  and  prosperous  common¬ 
wealths  which  form  that  group.  On  the  other  hand,  while 
Pennsylvania,  New  Jersey,  and  New  York  had  not  (from  the 
causes  already  stated)  started  with  the  town  system,  they 
never  adopted  it  completely;  while  in  Ohio  and  Indiana  the 
influx  of  settlers  from  the  slave  States,  as  well  as  from  New 
York  and  Pennsylvania,  gave  to  the  county  an  early  prepon¬ 
derance,  which  it  has  since  retained.  The  conflict  of  the  New 
England  element  with  the  Southern  element  is  best  seen  in 
Illinois,  the  northern  half  of  which  State  was  settled  by  men 
of  New  England  blood,  the  southern  half  by  pioneers  from 
Kentucky  and  Tennessee.  The  latter,  coming  first,  estab¬ 
lished  the  county  system,  but  the  New  Englanders  fought 
against  it,  and  in  the  constitutional  convention  of  1848  carried 
a  provision,  embodied  in  the  Constitution  of  that  year,  and 
repeated  in  the  present  Constitution  of  1870,  whereby  any 
county  may  adopt  a  system  of  township  organization  “when¬ 
ever  the  majority  of  the  legal  voters  of  the  county  voting  at 
any  general  election  shall  so  determine.”  Under  this  power 

four-fifths  of  the  102  counties  have  now  adopted  the  township 
system. 

The  conspicuous  feature  of  this  system  is  the  reappearance 
of  the  New  England  town  meeting,  though  in  a  somewhat 
less  primitive  and  at  the  same  time  less  perfect  form,  because 
the  township  of  the  West  is  a  more  artificial  organism  than 
the  rural  town  of  Massachusetts  or  Rhode  Island,  where,  until 
lately,  everybody  was  of  English  blood,  everybody  knew  every¬ 
body  else,  everybody  was  educated  not  only  in  book-learning, 
but  in  the  traditions  of  self-government.  However,  such  as  it 
is,  the  Illinois  and  Michigan  system  is  spreading. 

In  proportion  to  the  extent  in  which  a  State  has  adopted 
the  township  system  the  county  has  tended  to  decline  in  impor¬ 
tance.  It  is  nevertheless  of  more  consequence  in  the  West 
than  in  New  England.  It  has  frequently  an  educational  offi¬ 
cial  who  inspects  the  schools,  and  it  raises  a  tax  for  aiding 


112 


THE  STATE  GOVERNMENTS 


PART  II 


schools  in  the  poorer  townships.  It  has  duties,  which  are 
naturally  more  important  in  a  new  than  m  an  old  btate,  o± 
laying  out  main  roads  and  erecting  bridges  and  other  public 
works  And  sometimes  it  has  the  oversight  of  township 
expenditure.  The  board  of  county  commissioners  consists  ^ 
Michigan  and  Illinois  of  the  supervisors  of  all  the  townships 
within  the  county ;  in  Wisconsin  and  Minnesota  the  commis¬ 
sioners  are  directly  chosen  at  a  county  election.  . 

I  pass  to  the  mixed  or  compromise  system  as  it  appftirs 
in  the  other  group  of  States,  of  which  Pennsylvania,  Ohio, 
Indiana,  and  Iowa  may  be  taken  as  samples.  In  these  States 
we  find  no  town  meeting.  Their  township  may  have  greater 
or  less  power,  but  its  members  do  not  come  together  in  a 
primary  assembly;  it  elects  its  local  officers,  and  acts  only 
through  and  by  them.  In  Ohio  there  are  three  towns  up 
trustees  with  the  entire  charge  of  local  affairs,  a  clerk  and  a 
treasurer.  In  Pennsylvania  the  township  is  governed  by  two 
or  three  supervisors,  elected  for  three  years,  one  each  year,  to- 
o-ether  with  an  assessor  (for  valuation  purposes),  a  town  clerk, 
three  auditors,  six  school  directors,  elected  for  three  years, 
two  each  year;  and  (where  the  poor  are  a  township  charge) 
two  overseers  of  the  poor.  The  supervisors  may  lay  a  rate  on 
the  township  not  exceeding  one  per  cent  on  the  valuation  oi 
the  property  within  its  limits  for  the  repair  of  roads,  high¬ 
ways,  and  bridges,  and  the  overseers  of  the  poor  may,  with 
the  consent  of  two  justices,  levy  a  similar  tax  for  the  poor. 
But  as  the  poor  are  usually  a  county  charge,  and  as  any  rate¬ 
payer  may  work  out  his  road  tax  in  labour,  township  rates 

amount  to  very  little. 


CHAPTER  XL VIII 


OBSERVATIONS  ON  LOCAL  GOVERNMENT 

*he  chief  functions  local  government  has  to  discharge  in 
the  United  States  may  be  summarized  in  a  few  paragraphs:  — 

Making  and  repairing  Roads  and  Bridges.  —  These  prime  ne¬ 
cessities  of  rural  life  are  provided  for  by  the  township,  county, 
or  State,  according  to  the  class  to  which  a  road  or  bridge  be¬ 
longs.  That  the  roads  of  America  are  proverbially  ill-built 
and  ill-kept  is  due  partly  to  the  climate,  with  its  alternations 
of  severe  frost,  occasional  torrential  rains  (in  the  Middle  and 
Southern  States),  and  long  droughts ;  partly  to  the  hasty  hab¬ 
its  of  the  people,  who  are  too  busy  with  other  things,  and  too 
eager  to  use  their  capital  in  private  enterprises  to  be  willing 
to  spend  freely  on  highways ;  partly  also  to  the  thinness 
of  population,  which  is,  except  in  a  few  manufacturing  dis¬ 
tricts,  much  less  dense  than  in  Western  Europe.  In  many 
districts  railways  have  come  before  roads,  so  roads  have  been 
the  less  used  and  cared  for. 

The  administration  of  justice  was  one  of  the  first  needs 
which  caused  the  formation  of  the  county :  and  matters  con¬ 
nected  with  it  still  form  a  large  part  of  county  business.  The 
voters  elect  a  judge  or  judges,  and  the  local  prosecuting  offi¬ 
cer,  called  the  district  attorney,  and  the  chief  executive  officer, 
the  sheriff.  Prisons  are  a  matter  of  county  concern.  Police 
ib ‘always  locally  regulated,  but  in  the  Northern  States  more 
usually  by  the  township  than  by  the  county.  However,  this 
branch  of  government,  so  momentous  in  continental  Europe, 
is  in  America  comparatively  unimportant  outside  the  cities. 
The  rural  districts  get  on  nearly  everywhere  with  no  guardians 
of  the  peace,  beyond  the  township  constable;  nor  does  the 
State  government,  except,  of  course,  through  statutes,  exercise 
any  control  over  local  police  administration.  In  the  rural  parts 
of  the  Eastern  and  Middle  States  property  is  as  safe  as  any- 

413 


414 


THE  STATE  GOVERNMENTS 


PART  II 


where  in  the  world.  In  such  parts  of  the  West  as  are  disturbed 
by  dacoits,  or  by  solitary  highwaymen,  travellers  defend  them¬ 
selves,  and,  if  the  sheriff  is  distant  or  slack,  lynch  law  may 
usefully  be  invoked.  The  care  of  the  poor  is  thrown  almost 
everywhere  upon  local  and  not  upon  State  authorities,  and 
defrayed  out  of  local  funds,  sometimes  by  the  county,  some¬ 
times  by  the  township.  The  poor  laws  of  the  several  States 
differ  in  so  many  particulars  that  it  is  impossible  to  give  even 
an  outline  of  them  here.  Little  out-door  relief  is  given,  though 
in  most  States  the  relieving  authority  may,  at  his  or  their  dis¬ 
cretion,  bestow  it ;  and  pauperism  is  not,  and  has  never  been,  a 
serious  malady,  except  in  some  five  or  six  great  cities,  where 
it  is  now  vigorously  combated  by  volunteer  organizations  largely 
composed  of  ladies.  The  total  number  of  persons  returned 
as  almshouse-paupers  in  the  whole  Union  in  1890  was  73,045. 
Adding  25,000  for  persons  in  receipt  of  out-door  relief,  we 
have  a  proportion  of  1  to  652  of  the  whole  population. 

To  education  I  can  refer  only  in  passing,  because  the  differ¬ 
ences  between  the  arrangements  of  the  several  States  are  too 
numerous  to  be  described  here.  It  has  hitherto  been  not  only 
a  more  distinctively  local  matter,  but  one  relatively  far  more 
important  than  in  most  parts  of  Europe.  And  there  is  usually 
a  special  administrative  body,  often  a  special  administrative 
area,  created  for  its  purposes  —  the  school  committee  and 
the  school  district.  The  vast  sum  expended  on  public  in¬ 
struction  has  been  already  mentioned.  Though  primarily 
dealt  with  by  the  smallest  local  circumscription,  there  is  a 
growing  tendency  for  both  the  county  and  the  State  to  inter¬ 
est  themselves  in  the  work  of  instruction  by  way  of  inspec¬ 
tion,  and  to  some  extent  of  pecuniary  subventions.  Not  only 
does  the  county  often  appoint  a  county  superintendent,  but 
there  are  in  some  States  county  high  schools  and  (in  most) 
county  boards  of  education,  besides  a  State  board  of  commis¬ 
sioners.  I  need  hardly  add  that  the  schools  of  all  grades  are 
more  numerous  and  efficient  in  the  Northern  and  Western  than 
in  the  Southern  States.  In  old  colonial  days,  when  the  Eng¬ 
lish  commissioners  for  foreign  plantations  asked  for  infor¬ 
mation  on  the  subject  of  education  from  the  governors  of 
Virginia  and  Connecticut,  the  former  replied,  “  I  thank  God 
there  are  no  free  schools  or  printing  presses,  and  I  hope 


chap,  xl vi 1 1  OBSERVATIONS  ON  LOCAL  GOVERNMENT 


415 


we  shall  not  have  any  these  hundred  years ;  ”  and  the  latter, 
“  One-fourth  of  the  annual  revenue  of  the  colony  is  laid  out  in 
maintaining  free  schools  for  the  education  of  our  children.” 
The  disparity  was  prolonged  and  intensified  in  the  South  by 
the  existence  of  slavery.  Now  that  slavery  has  gone,  the 
South  makes  rapid  advances ;  but  the  proportion  of  illiteracy, 
especially  of  course  among  the  Negroes,  is  still  high. 

The  apparent  complexity  of  the  system  of  local  government 
sketched  in  the  last  preceding  chapter  is  due  entirely  to  the 
variations  between  the  several  States.  In  each  State  it  is 
eminently  simple.  There  are  few  local  divisions,  few  authori¬ 
ties;  the  divisions  and  authorities  rarely  overlap.  No  third 
local  aiea  and  local  authority  intermediate  between  township 
and  county  has  been  found  necessary.  Especially  simple  is 
the  method  of  levying  taxes.  In  most  States  a  citizen  pays  at 
the  same  time,  to  the  same  officer,  upon  the  same  paper  of 
demand,  all  his  local  taxes,  and  not  only  these,  but  also  his 
State  tax ;  in  fact,  all  the  direct  taxes  which  he  is  required  to 
pay.  The  State  is  spared  the  expense  of  maintaining  a  sepa¬ 
rate  collecting  staff,  for  it  leans  upon  and  uses  the  local  officials 
who  do  the  purely  lpcal  work.  The  tax-payer  has  not  the  worry 
of  repeated  calls  upon  his  check-book.  Nor  is  this  simplicity 
and  activity  of  local  administration  due  to  its  undertaking 
fewer  duties,  as  compared  with  the  State,  than  is  the  case  in 
Europe.  On  the  contrary,  the  sphere  of  local  government  is 
in  America  unusually  wide,  and  widest  in  what  may  be  called 
the  most  characteristically  American  and  democratic  regions, 
New  England  and  the  North-west.  Americans  often  reply  to 
the  criticisms  which  Europeans  pass  on  the  faults  of  their 
State  legislatures  and  the  shortcomings  of  Congress  by  pointing 
to  the  healthy  efficiency  of  their  rural  administration,  which 
enables  them  to  bear  with  composure  the  defects  of  the  higher 
organs  of  government,  defects  which  would  be  less  tolerable  in 
a  centralized  country,  where  the  National  government  deals 
directly  with  local  affairs,  or  where  local  authorities  await  an 
initiative  from  above. 

Of  the  three  or  four  types  or  systems  of  local  government 
which  I  have  described,  that  of  the  town  or  township  with  its 
popular  primary  assembly  is  admittedly  the  best.  It  is  the 
cheapest  and  the  most  efficient ;  it  is  the  most  educative  to  the 


416 


THE  STATE  GOVERNMENTS 


rAKT  li 


citizens  who  bear  a  part  in  it.  The  town  meeting  has  been 
not  only  the  source  but  the  school  of  democracy.1  The  action 
of  so  small  a  unit  needs,  however,  to  be  supplemented,  perhaps 
also  in  some  points  supervised,  by  that  of  the  county,  and  in 
this  respect  the  mixed  system  of  the  Middle  States  is  deemed 
to  have  borne  its  part  in  the  creation  of  a  perfect  type.  For 
some  time  past  an  assimilative  process  has  been  going  on  over 
the  United  States  tending  to  the  evolution  of  such  a  type.  In 
adopting  the  township  system  of  New  England,  the  North¬ 
western  States  ha,ve  borrowed  some  of  the  attributes  of  the 
Middle  States  county  system.  The  Middle  States  have  devel¬ 
oped  the  township  into  a  higher  vitality  than  it  formerly  pos¬ 
sessed  there.  Some  of  the  Southern  States  are  introducing  t  e 
township,  and  others  are  likely  to  follow  as  they  advance  in 
population  and  education.  It  is  possible  that  by  the  middle  of 
next  century  there  will  prevail  one  system,  uniform  m  its  out¬ 
lines  over  the  whole  country,  with  the  township  for  its  basis, 
and  the  county  as  the  organ  called  to  deal  with  those  matters 
which,  while  they  are  too  large  for  township  management,  it 
seems  inexpedient  to  remit  to  the  unhealthy  atmosphere  of  a 
State  capital. 

1  In  Rhode  Island  it  was  the  towns  that  made  the  State. 


CHAPTER  XLIX 


THE  GOVERNMENT  OF  CITIES 

The  growth  of  great  cities  has  been  among  the  most  sig¬ 
nificant  and  least  fortunate  changes  in  the  character  of  the 
population  of  the  United  States  during  the  century  that  has 
passed  since  1787.  The  census  of  1790  showed  only  six  cities 
with  more  than  8000,  and  only  one  with  more  than  40,000  in¬ 
habitants.  In  1880  there  were  286  exceeding  8000,  40  exceed¬ 
ing  40,000,  20  exceeding  100,000;  while  the  census  of  1890 
showed  443  exceeding  8000,  7 4  exceeding  40,000,  28  exceeding 
100,000.  The  ratio  of  persons  living  in  cities  exceeding  8000 
inhabitants  to  the  total  population  was,  in  1790,  3.35  per  cent, 
in  1840,  8.52,  in  1880,  22.57,  in  1890,  29.12.  And  this  change 
has  gone  on  with  accelerated  speed  notwithstanding  the  enor¬ 
mous  extension  of  settlement  over  the  vast  regions  of  the 
West.  Needless  to  say  that  a  still  larger  and  increasing  pro¬ 
portion  of  the  wealth  of  the  country  is  gathered  into  the 
larger  cities.  Their  government  is  therefore  a  matter  of  high 
concern  to  America,  and  one  which  cannot  be  omitted  from  a 
discussion  of  transatlantic  politics. 

We  find  in  all  the  larger  cities  — 

A  mayor,  head  of  the  executive,  and  elected  directly  by  the 
voters  within  the  city. 

Certain  executive  officers  or  boards,  some  directly  elected  by 
the  city  voters,  others  nominated  by  the  mayor  or  chosen 
by  the  city  legislature. 

A  legislature,  consisting  usually  of  two,  but  sometimes  of 
one  chamber,  directly  elected  by  the  city  voters. 

Judges,  usually  elected  by  the  city  voters,  but  sometimes 
appointed  by  the  State. 

What  is  this  but  the  frame  of  a  State  government  applied 
to  the  smaller  area  of  a  city  ?  The  mayor  corresponds  to  the 
governor,  the  officers  or  boards  to  the  various  State  officials 
2  £ 


417 


418 


THE  STATE  GOVERNMENTS 


PART  II 


and  boards  elected,  in  most  cases,  by  the  people ;  the  aldermen 
and  common  council  (as  they  are  generally  called)  to  the  State 
Senate  and  Assembly ;  the  city  elective  judiciary  to  the  State 

elective  judiciary. 

The  mayor  is  by  far  the  most  conspicuous  figure  m  city  gov¬ 
ernments.  He  holds  office,  sometimes  for  one  year,  but  now 
more  frequently  for  two,  three,  or  even  five  years.  In  some 
cities  he  is  not  re-eligible.  He  is  directly  elected  by  the  people 
of  the  whole  city,  and  is  usually  not  a  member  of  the  city  legis¬ 
lature.  He  has,  almost  everywhere,  a  veto  on  all  ordinances 
passed  by  that  legislature,  which,  however,  can  be  overridden 
by  a  two-thirds  majority.  In  many  cities  he  appoints  some 
among  the  heads  of  departments  and  administrative  boards, 
though  usually  the  approval  of  the  legislature  or  of  one  branch 
of  it  is  required.  Quite  recently  some  city  charteis  have  gone 
so  far  as  to  make  him  generally  responsible  for  all  the  depart¬ 
ments  (subject  to  the  control  of  supply  by  the  legislative 
body),  and  therewith  liable  to  impeachment  for  misfeasance. 
He  receives  a  considerable  salary,  varying  with  the  size  of  the 
city,  but  sometimes  reaching  $10,000,  the  same  salary  as  that 
allotted  to  the  justices  of  the  Supreme  Federal  Court.  It  rests 
with  him,  as  the  chief  executive  officer,  to  provide  for  the  pub¬ 
lic  peace,  to  quell  riots,  and,  if  necessary,  to  call  out  the  militia. 
He  often  exerts,  in  practice,  some  discretion  as  to  the  enforce¬ 
ment  of  the  law ;  he  may,  for  instance,  put  in  force  Sunday 
Closing  Acts  or  regulations,  or  omit  to  do  so. 

The  practical  work  of  administration  is  carried  on  by  a 
number  of  departments,  sometimes  under  one  head,  sometimes 
constituted  as  boards  or  commissions.  The  most  important 
of  these  are  directly  elected  by  the  people,  for  a  term  of  one, 
two,  three,  or  four  years.  Some,  however,  are  chosen  by  the 
city  legislature,  some  by  the  mayor  with  the  approval  of  the 
legislature  or  its  upper  chamber.  In  most  cities  the  chief 
executive  officers  have  been  disconnected  from  one  another, 
owing  no  common  allegiance,  except  that  which  their  financial 
dependence  on  the  city  legislature  involves,  and  communicating 
less  with  the  city  legislature  as  a  whole  than  with  its  commit¬ 
tees,  each  charged  with  some  one  branch  of  administration,  and 
each  apt  to  job  it. 

Education  has  been  generally  treated  as  a  distinct  matter, 


chap,  xlix 


THE  GOVERNMENT  OF  CITIES 


419 


with  which  neither  the  mayor  nor  the  city  legislature  has  been 
suffered  to  meddle.  It  is  committed  to  a  board  of  education 
whose  members  are  separately  elected  by  the  people,  or,  as  in 
Brooklyn,  appointed  by  the  mayor,  and  who  levy  (though  they 
do  not  themselves  collect)  a  separate  tax,  and  have  an  execu- 
tive  staff  of  their  own  at  their  disposal. 

The  city  legislature  usually  consists  in  small  cities  of  one 
chamber,  in  large  ones  of  two,  the  upper  of  which  generally 
bears  the  name  of  the  board  of  aldermen,  the  lower  that  of 
the  common  council.1  All  are  elected  by  the  citizens,  gener- 
ally  in  wards,  but  the  upper  house  occasionally  by  districts  or 
on  what  is  called  a  “  general  ticket,”  i.e.  a  vote  over  the  whole 
city.2  Usually  the  common  council  is  elected  for  one  year,  or 
at  most  for  two  years,  the  upper  chamber  frequently  for  a 
longer  periods  Both  are  usually  unpaid  in  the  smaller  cities 
sometimes  paid  in  the  larger.3 4  All  city  legislation,  that  is  to 
say,  ordinances,  by-laws,  and  votes  of  money  from  the  city 
treasury,  are  passed  by  the  council  or  councils,  subject  in 
many  cases  to  the  mayor’s  veto.  Except  in  a  few  cities  gov¬ 
erned  by  very  recent  charters,  the  councils  have  some  control 
over  at  least  the  minor  officials.  Such  control  is  exercised  by 
committees,  a  method  borrowed  from  the  State  and  National 
legislatures,  and  suggested  by  the  same  reasons  of  convenience 
which  have  established  it  there,  but  proved  by  experience  to 
have  the  evils  of  secrecy  and  irresponsibility  as  well  as  that 
of  disconnecting  the  departments  from  one  another. 

The  city  judges  are  only  in  so  far  a  part  of  the  municipal 


Some  large  cities,  however  ( e.g .  New  York  and  Brooklyn,  Chicago  with  its 
.30  aldermen,  San  Francisco  with  its  12  supervisors),  have  only  one  chamber 
In  some  few  cities,  among  which  are  Chicago  and  (as  respects  police  mag¬ 
istrates  and  school  directors)  Philadelphia,  the  plan  of  minority  representation 
has  been  to  some  extent  adopted  by  allowing  the  voter  to  cast  his  vote  for 
two  candidates  only  when  there  are  three  places  to  be  filled.  It  was  tried  in 
■New  York,  but  the  State  Court  of  Appeals  held  it  unconstitutional.  So  far 
as  I  can  ascertain,  this  method  has  in  Philadelphia  proved  rather  favourable 
than  otherwise  to  the  “  machine  politicians,”  who  can  rely  on  their  masses  of 
armed  voters. 

3  Sometimes  the  councilman  is  required  by  statute  to  be  a  resident  in  the 
ward  he  represents. 

4  and  Cincinnati  give  no  salary,  St.  Louis  pays  members  of  both  its 
councils  $300  a  year,  Baltimore,  $1000.  New  York  pays  and  Brooklyn  does 
not.  The  Municipal  (Reform)  League  of  Philadelphia  advocate  the  payment 
o.i  councilmen. 


420 


THE  STATE  GOVERNMENTS 


PART  II 


government  that  in  most  of  the  larger  cities  they  are  elected 
by  the  citizens,  like  the  other  chief  officers.  There  are  usually 
several  superior  judges,  chosen  for  terms  of  five  years  and 
upwards,  and  a  larger  number  of  police  justices,  generally 
for  shorter  terms.  Occasionally,  however,  the  State  has  pru¬ 
dently  reserved  to  itself  the  appointment  of  judges.  .  _ 

The  election  of  the  above  officers  is  usually  made  to  coincide 
with  that  of  State  officers,  perhaps  also  of  Federal  congress¬ 
men.  This  saves  expense  and  trouble.  But  as  it  not  only 
bewilders  the  voter  in  his  choice  of  men  by  distracting  Ins 
attention  between  a  large  number  of  candidates  and  places, 
but  also  confirms,  the  tendency,  already  strong,  to  vote  for  city 
officers  on  party  lines,  there  has  of  late  years  been  a  movement 
in  some  places  to  have  the  municipal  elections  fixed  for  a 
different  date  from  that  of  State  or  Federal  elections,  so  that 
the  undistracted  and  non-partisan  thought  of  the  citizens  may 

be  given  to  the  former.  ... 

At  present  the  disposition  to  run  and  vote  for  candidates 

according  to  party  is  practically  universal,  although  the  duty 
of  party  loyalty  is  deemed  less  binding  than  in  State  or  Federal 
elections.  When  both  the  great  parties  put  forward  question¬ 
able  men,  a  non-partisan  list,  or  so-called  “  citizens’  ticket, 
may  be  run  by  a  combination  of  respectable  men  of  both  par¬ 
ties.  Sometimes  this  attempt  succeeds.  However,  though  the 
tenets  of  Republicans  and  Democrats  have  absolutely  nothing 
to  do  with  the  conduct  of  city  affairs,  though  the  sole  object 
of  the  election,  say  of  a  city  comptroller  or  auditor,  may  be  to 
find  an  honest  man  of  good  business  habits,  four-fifths  of  the 
electors  in  nearly  all  cities  give  little  thought  to  the  personal 
qualifications  of  the  candidates,  and  vote  the  “  straight  out 

The  functions  of  city  government  may  be  distributed  into 
three  groups  —  (a)  those  which  are  delegated  by  the  State  out 
of  its  general  coercive  and  administrative  powers,  including 
the  police  power,  the  granting  of  licences,  the  execution  ot 
laws  relating  to  adulteration  and  explosives;  ( b )  those  which 
though  done  under  general  laws  are  properly  matters  of  local 
charge  and  subject  to  local  regulation,  such  as  education  and 
the  care  of  the  poor ;  and  (c)  those  which  are  not  so  much  ot 

i  Sometimes  the  police  justices  are  nominated  by  the  mayor. 


CHAP.  XLIX 


THE  GOVERNMENT  OF  CITIES 


421 


a  political  as  of  a  purely  business  order,  such  as  the  paving 
and  cleansing  of  streets,  the  maintenance  of  proper  drains,  the 
provision  of  water  and  light.  In  respect  of  the  first,  and  to 
some  extent  of  the  second  of  these  groups,  the  city  may  be 
properly  deemed  a  political  entity;  in  respect  of  the  third  it 
is  rather  to  be  compared  to  a  business  corporation  or  company, 
in  which  the  tax-payers  are  shareholders,  doing,  through  the 
agency  of  the  city  officers,  things  which  each  might  do  for 
himself,  though  with  more  cost  and  trouble.  All  three  sets 
of  functions  are  dealt  with  by  legislation  in  the  same  way,  and 
are  alike  given  to  officials  and  a  legislature  elected  by  persons 
cf  whom  a  large  part  pay  no  direct  taxes.  Education,  how¬ 
ever,  is  usually  detached  from  the  general  city  government  and 
entrusted  to  a  separate  authority,  while  in  some  cities  the  con¬ 
trol  of  the  police  has  been  withheld  or  withdrawn  from  that 
government,  and  entrusted  to  the  hands  of  a  separate  board. 

Taxes  in  cities,  as  in  rural  districts,  are  levied  upon  personal 
as  well  as  real  property;  and  the  city  tax  is  collected  along 
with  the  county  tax  and  State  tax  by  the  same  collectors. 
Both  real  and  personal  property  are  usually  assessed  far  below 
their  true  value,  the  latter  because  owners  are  reticent,  the 
former  because  the  city  assessors  are  anxious  to  take  as  little 
as  possible  of  the  State  and  county  burden  on  the  shoulders 
of  their  own  community,  though  in  this  patriotic  effort  they 
are  checked  by  the  county  and  State  boards  of  equalization. 
Taxes  are  usually  so  much  higher  in  the  larger  cities  than  in 
the  country  districts  or  smaller  municipalities,  that  there  is  a 
strong  tendency  for  rich  men  to  migrate  from  the  city  to  its 
suburbs  in  order  to  escape  the  city  collector.  Perhaps  the 
city  overtakes  them,  extending  its  limits  and  incorporating  its 
suburbs;  perhaps  they  fly  farther  afield  by  the  railway  and 
make  the  prosperity  of  country  towns  twenty  or  thirty  miles 
away.  The  unfortunate  consequence  follows,  not  only  that 
the  taxes  are  heavier  for  those  who  remain  in  the  city,  but 
that  the  philanthropic  and  political  work  of  the  city  loses  the 
participation  of  those  who  ought  to  have  shared  in  it.  Eor  a 
man  votes  in  one  place  only,  the  place  where  he  resides  and 
pays  taxes  on  his  personality;  and  where  he  has  no  vote,  he 
is  neither  eligible  for  local  office  nor  deemed  entitled  to  take 
a  part  in  local  political  agitation. 


CHAPTEB  L 


the  working  of  city  governments 

Two  tests  of  practical  efficiency  may  be  applied  to  the  gov  ■ 
eminent  of  a  city :  What  does  it  provide  for  the  people,  and 
what  does  it  cost  the  people?  Space  fails  me  to  apply  in 
detail  the  former  of  these  tests,  by  showing  what  each  city 
does  or  omits  to  do  for  its  inhabitants ;  so  I  must  be  content 
with  observing  that -in  the  United  States  generally  constant 
complaints  are  directed  against  the  bad  paving  and  cleansing 
of  the  streets,  the  non-enforcement  of  the  laws  forbidding 
gambling  and  illicit  drinking,  and  in  some  places  against  the 
sanitary  arrangements  and  management  of  public  buildings 
and  parks. 

The  other  test,  that  of  expense,  is  easily  applied.  Both  the 
debt  and  the  taxation  of  American  cities  have  risen  with 
unprecedented  rapidity,  and  now  stand  at  an  alarming  figure. 

They  have  grown  much  more  swiftly  than  population,  swift 
as  has  been  its  growth  in  cities ;  and  for  a  large  part  of  the 
debt  there  is  nothing  to  show :  it  is  due  to  waste  or  corruption. 

There  is  no  denying  that  the  government  of  cities  is  the  one 
conspicuous  failure  of  the  United  States.  The  deficiencies  of 
the  National  government  tell  but  little  for  evil  on  the  welfare 
of  the  people.  The  faults  of  the  State  governments  are  insig¬ 
nificant  compared  with  the  extravagance,  corruption,  and 
mismanagement  which  mark  the  administrations  of  most  of 
the  great  cities.  For  these  evils  are  not  confined  to  one  or 
two  cities.  There  is  not  a  city  with  a  population  exceeding 
200,000  where  the  poison  germs  have  not  sprung  into  a  vigor¬ 
ous  life;  and  in  some  of  the  smaller  ones,  down  to  70,000,  it 
needs  no  microscope  to  note  the  results  of  their  growth.  .  Even 
in  cities  of  the  third  rank  similar  phenomena  may  occasionally 
be  discerned. 

For  evils  which  appear  wherever  a  large  population  is  densely 
422 


CHAP.  L  THE  WORKING  OF  CITY  GOVERNMENTS 


423 


aggregated,  there  must  be  some  general  and  widespread  causes. 
What  are  these  causes?  The  chief  sources  of  the  malady,  and 
the  chief  remedies  that  have  been  suggested  for  or  applied  to 
it  were  summarized  by  the  New  York  commissioners  of  1876 
appointed  “  to  devise  a  plan  for  the  government  of  cities  in 
the  State  of  New  York.”  They  sum  up  the  mischief  as  fol¬ 
lows  :  — 

“  1-  The  accumulation  of  permanent  municipal  debt :  In  New  York  it 
was,  in  1840,  $10,000,000 ;  in  1850,  $12,000,000 ;  in  1860,  $18,000,000 ;  in 
1870,  $73,000,000;  in  1876,  $113,000,000. 

“2.  The  excessive  increase  of  the  annual  expenditure  for  ordinary 
purposes  :  In  1816  the  amount  raised  by  taxation  was  less  than  \  per 
cent  on  the  taxable  property ;  in  1850,  1.13  per  cent ;  in  1860,  1.69  per 
cent;  in  1870,  2.17  per  cent;  in  1876,  2.67  percent.  .  .  .  The  increase 
in  the  annual  expenditure  since  1850,  as  compared  with  the  increase  of 
population,  is  more  than  400  per  cent,  and  as  compared  with  the  increase 
of  taxable  property,  more  than  200  per  cent.” 

They  suggest  the  following  as  the  causes :  — 

1.  Incompetent  and  unfaithful  governing  boards  and  officers. 

2.  The  introduction  of  State  and  National  politics  into 
municipal  affairs. 

3.  The  assumption  by  the  State  legislature  of  the  direct 
control  of  local  affairs. 

This  last-mentioned  cause  of  evil  is  no  doubt  a  departure 
from  the  principle  of  local  popular  control  and  responsibility 
on  which  State  governments  and  rural  local  governments  have 
been  based.  It  is  a  dereliction  which  has  brought  its  pun¬ 
ishment  with  it.  But  the  resulting  mischiefs  have  been  im¬ 
mensely  aggregated  by  the  vices  of  the  legislatures  in  a  few  of 
the  States,  such  as  New  York  and  Pennsylvania.  As  regards 
the  two  former  causes,  they  are  largely  due  to  what  is  called  the 
Spoils  System,  whereby  office  becomes  the  reward  of  party  ser¬ 
vice,  and  the  whole  machinery  of  party  government  made  to 
serve,  as  its  main  object,  the  getting  and  keeping  of  places. 
Now  the  Spoils  System,  with  the  party  machinery  which  it 
keeps  oiled  and  greased  and  always  working  at  high  pressure, 
is  far  more  potent  and  pernicious  in  great  cities  than  in  country 
districts.  For  in  great  cities  we  find  an  ignorant  multitude, 
largely  composed  of  recent  immigrants,  untrained  in  self- 
government;  we  find  a  great  proportion  of  the  voters  paying 


424 


THE  STATE  GOVERNMENTS 


PART  II 


no  direct  taxes,  and  therefore  feeling  no  interest  in  moderate 
taxation  and  economical  administration  ;  we  find  able  citizens 
absorbed  in  their  private  businesses,  cultivated  citizens  nnnsn 
ally  sensitive  to  the  vulgarities  of  practical  politics,  and  both 
sets  therefore  specially  unwilling  to  sacrifice  their  time  and 
tastes  and  comfort  in  the  struggle  with  sordid  wirepullers  and 
noisy  demagogues.  In  great  cities  the  forces  that  attack 
and  pervert  democratic  government  are  exceptionally  numer¬ 
ous,  the  defensive  forces  that  protect  it  exceptionally  ill-placed 
for  resistance.  Satan  has  turned  his  heaviest  batteries  on  the 
weakest  part  of  the  ramparts. 

Besides  these  three  causes  on  which  the  commissioners  dwell, 
and  the  effects  of  which  are  felt  in  the  great  cities  of  other 
States  as  well  as  of  New  York,  though  perhaps  to  a  less  degree, 
there  are  what  may  be  called  mechanical  defects  in  the  struct¬ 
ure  of  municipal  governments,  whose  nature  may  be  gathered 
from  the  account  given  in  last  chapter.  Theie  is  a  want  of 
methods  for  fixing  public  responsibility  on  the  governing  per¬ 
sons  and  bodies.  If  the  mayor  jobs  his  patronage  he  can 
throw  a  large  part  of  the  blame  on  the  aldermen  or  other  con¬ 
firming  council,  alleging  that  he  would  have  selected  better 
men  could  he  have  hoped  that  the  aldermen  would  approve  his 
selection.  If  he  has  failed  to  keep  the  departments  up  to 
their  work,  he  may  argue  that  the  city  legislature  hampered 
him  and  would  not  pass  the  requisite  ordinances.  Each  house 
of  a  two-chambered  legislature  can  excuse  itself  by  pointing 
to  the  action  of  the  other,  or  of  its  committees,  and  among  the 
numerous  members  of  the  chambers  —  or  even  of  one  chamber 
if  there  be  but  one  —  responsibility  is  so  divided  as  to  cease  to 
come  forcibly  home  to  any  one.  The  various  boards  and  officials 
have  generally  had  little  intercommunication;1  and  the  fact 
that  some  were  directly  elected  by  the  people  made  these  feel 
themselves  independent  both  of  the  mayor  and  the  city  legis¬ 
lature.  The  mere  multiplication  of  elective  posts  distracts 
the  attention  of  the  people,  and  deprives  the  voting  at  the 
polls  of  its  efficiency  as  a  means  of  reproof  or  commendation. 

1  In  Philadelphia  some  one  has  observed  that  there  were  four  distinct  and 
independent  authorities  with  power  to  tear  up  the  streets,  and  that  there  was 
no  authority  upon  whom  the  duty  was  specially  laid  to  put  them  in  repair 
again. 


CHAP.  L 


TIIE  WORKING  OF  CITY  GOVERNMENTS 


425 


The  remedies  proposed  by  the  New  York  commission  were 
the  following :  — 

(a)  A  restriction  of  the  power  of  the  State  legislature  to 
interfere  by  special  legislation  with  municipal  governments 
or  the  conduct  of  municipal  affairs. 

(b)  The  holding  of  municipal  elections  at  a  different  period 
of  the  year  from  State  and  National  elections. 

(c)  The  vesting  of  the  legislative  powers  of  municipalities 
in  two  bodies:  — A  board  of  aldermen,  elected  by  the  ordinary 
(manhood)  suffrage,  to  be  the  common  council  of  each  city.  A 
board  of  finance  of  from  six  to  fifteen  members,  elected  by 
voters  who  had  for  two  years  paid  an  annual  tax  on  property 
assessed  at  not  less  than  $500,  or  a  rent  (for  premises  occu¬ 
pied)  of  not  less  than  $250. 1  This  board  of  finance  was  to 
have  a  practically  exclusive  control  of  the  taxation  and  expend¬ 
iture  of  each  city,  and  of  the  exercise  of  its  borrowing  powers, 
and  was  in  some  matters  to  act  only  by  a  two-thirds  majority. 

(d)  Limitations  on  the  borrowing  powers  of  the  munici¬ 
pality,  the  concurrence  of  the  mayor  and  two-thirds  of  the 
State  legislature,  as  well  as  of  two-thirds  of  the  board  of 
finance  being  required  for  any  loan  except  in  anticipation  of 
current  revenue. 

(e)  An  extension  of  the  general  control  and  appointing 
power  of  the  mayor,  the  mayor  being  himself  subject  to  re¬ 
moval  for  cause  by  the  governor  of  the  State. 

To  introduce  all  of  these  reforms  it  became  necessary  to 
amend  the  Constitution  of  the  State  of  New  York;  and  the  com¬ 
mission  drafted  a  series  of  amendments  accordingly.  These 
went  before  the  State  legislature.  But  the  birds  saw  the  net, 
and  naturally  omitted  to  submit  the  amendments  to  the  people. 
The  report,  in  fact,  fell  to  the  ground.  Some  beneficial  changes 
have,  however,  been  made  by  the  new  Constitution  of  the  State 
adopted  in  1894,  though  it  is  too  soon  to  judge  the  working  of 
the  changes. 

Among  the  other  reforms  in  city  government  which  I  find 
canvassed  in  America  are  the  following :  — 

(a)  Civil  service  reform,  i.e.  the  establishment  of  examina- 

1  This  was  to  apply  to  cities  with  a  population  exceeding  100,000.  In  smaller 
cities  the  rent  was  to  he  $100  at  least,  and  no  minimum  for  the  assessed  value 
of  the  taxed  property  was  to  be  fixed. 


426 


THE  STATE  GOVERNMENTS 


PART  II 


tions  as  a  test  for  admission  to  posts  under  the  city,  and  the 
bestowal  of  these  posts  for  a  fixed  term  of  years,  or  generally 
during  good  behaviour,  instead  of  leaving  the  civil  servant  at 
the  mercy  of  a  partisan  chief,  who  may  displace  him  to  make 
room  for  a  party  adherent  or  personal  friend. 

(b)  The  lengthening  of  the  terms  of  service  of  the  mayor 
and  the  heads  of  departments,  so  as  to  give  them  a  more  assured 
position  and  diminish  the  frequency  of  election.  —  This  has 
been  done  to  some  extent  in  recent  charters  witness  St.  Louis 
and  Philadelphia. 

(c)  The  vesting  of  almost  autocratic  executive  power  in  the 
mayor  and  restriction  of  the  city  legislature  to  purely  legisla¬ 
tive  work  and  the  voting  of  supplies.  — This  also  finds  place 
in  recent  charters,  notably  in  that  of  Brooklyn,  and  has  worked, 
on  the  whole,  well.  It  is,  of  course,  a  remedy  of  the  cuie  or 
kill  ”  order.  If  the  people  are  thoroughly  roused  to  choose  an 
able  and  honest  man,  the  more  power  he  has  the  better;  it  is 
safer  in  his  hands  than  in  those  of  city  councils.  If  the  voters 
are  apathetic  and  let  a  bad  man  slip  in,  all  may  be  lost  till  the 
next  election.  I  do  not  say  “all  is  lost,”  for  there  have  been 
remarkable  instances  of  men  who  have  been  sobered  and  ele¬ 
vated  by  power  and  responsibility. 

(d)  The  election  of  a  city  legislature,  for  one  branch  of  it, 
or  of  a  school  committee,  on  a  general  ticket  instead  of  by 
wards. —When  aldermen  or  councilmen  are  chosen  by  the 
voters  of  a  small  local  area,  it  is  assumed,  in  the  United 
States,  that  they  must  be  residents  within  it;  thus  the  field 
of  choice  among  good  citizens  generally  is  limited.  It  follows 
also  that  their  first  duty  is  deemed  to  be  to  get  the  most  they 
can  for  their  own  ward;  they  care  little  for  the  general  inter¬ 
ests  of  the  city,  and  carry  on  a  game  of  barter  in  contracts  and 
public  improvements  with  the  representatives  of  other  waids. 
Hence  the  general  ticket  system  is  preferable. 

(e)  The  limitation  of  taxing  powers  and  borrowing  powers 
by  reference  to  the  assessed  value  of  the  taxable  property 
within  the  city.  —  Restrictions  of  this  nature  have  been  largely 
applied  to  cities  as  well  as  to  counties  and  other  local  authori 
ties.  The  results  have  been  usually  good,  yet  not  uniformly 

so,  for  evasions  may  be  practised. 

Such  restrictions  are  now  often  found  embodied  in  State 


CHAP,  l  THE  WORKING  OF  CITY  GOVERNMENTS 


427 


constitutions,  and  have  usually,  so  far  as  I  could  ascertain, 
diminished  the  evil  they  are  aimed  at. 

The  question  of  city  government  is  that  which  chiefly  occu¬ 
pies  practical  publicists,  because  it  is  admittedly  the  weakest 
point  of  the  country.  That  adaptability  of  the  institutions 
to  the  people  and  their  conditions,  which  judicious  strangers 
have  been  wont  to  admire  in  the  United  States,  and  that  con¬ 
sequent  satisfaction  of  the  people  with  their  institutions, 
which  contrasts  so  agreeably  with  the  discontent  of  European 
nations,  is  wholly  absent  as  regards  municipal  administration. 
Wherever  there  is  a  large  city  there  are  loud  complaints,  and 
Americans  who  deem  themselves  in  other  respects  a  model  for 
the  Old  World  are  in  this  respect  anxious  to  study  Old  World 
models,  those  particularly  which  the  cities  of  Great  Britain 
present.  The  best  proof  of  dissatisfaction  is  to  be  found  in 
the  frequent  changes  of  system  and  method.  The  newer 
frames  of  government  are  an  improvement  upon  the  older. 
Rogues  are  less  audacious.  Good  citizens  are  more  active. 
Party  spirit  is  still  permitted  to  dominate  and  pervert  muni¬ 
cipal  politics,  yet  the  mischief  it  does  is  more  clearly  dis¬ 
cerned  and  the  number  of  those  who  resist  it  daily  increases. 
In  the  increase  of  that  number  and  the  growth  of  a  stronger 
sense  of  civic  duty  rather  than  in  any  changes  of  mechanism, 
lies  the  ultimate  hope  for  the  reform  of  city  governments. 


CHAPTER  LI 


AN  AMERICAN  VIEW  OF  MUNICIPAL  GOVERNMENT  IN  THE 

UNITED  STATES  1 

By  the  Hon.  Seth  Low,  President  of  Columbia  College,  New  York,  and 
formerly  Mayor  of  the  City  of  Brooklyn 

A  city  in  the  United  States  is  quite  a  different  thing  from 
a  city  in  its  technical  sense,  as  the  word  is  used  in  England. 
In  England  a  city  is  usually  taken  to  be  a  place  which  is  or 
has  been  the  seat  of_a  bishop.2  The  head  of  a  city  govern¬ 
ment  in  England  is  a  mayor,  but  many  boroughs  which  are 
not  cities  are  also  governed  by  a  mayor.  In  the  United  States 
a  city  is  a  place  which  has  received  a  charter  as  a  city  from  the 
legislature  of  its  State.  In  America  there  is  nothing  what¬ 
ever  corresponding  to  the  English  borough.  Whenever  in  the 
United  States  one  enters  a  place  that  is  presided  over  by  a 
mayor,  he  may  generally  understand  that  he  is  in  a  city;  save 
that  here  and  there  incorporated  villages  have  mayors. 

Any  European  student  of  politics  who  wishes  to  understand 
the  problem  of  government  in  the  United  States,  whether  of 
city  government  or  any  other  form  of  it,  must  first  of  all  trans¬ 
fer  himself,  if  he  can,  to  a  point  of  view  precisely  the  opposite 
of  that  which  is  natural  to  him.  This  is  scarcely,  if  at  all, 
less  true  of  the  English  than  of  the  continental  student.  In 
England  as  upon  the  continent,  from  time  immemorial,  govern¬ 
ment  has  descended  from  the  top  down.  Until  recently,  society 
in  Europe  has  accepted  the  idea,  almost  without  protest,  that 
there  must  be  governing  classes,  and  that  the  great  majority 
of  men  must  be  governed.  The  Erench  Revolution  doubtless 


1  This  chapter  is  copyright,  by  Seth  Low,  1888. 

2  In  Scotland,  where  there  have  been,  since  the  Revolution,  no  bishops, 
Edinburgh,  Glasgow,  Aberdeen,  and  now  (1889)  Dundee  are  described  as  cities. 
In  England  Westminster  is  called  a  city.  It  had,  however,  for  a  short  time,  a 
bishop. 


428 


chap,  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  420 


modified  this  idea  everywhere,  and  especially  in  France,  but 
even  in  France  public  sentiment  on  this  point  is  a  resultant 
of  a  conflict  of  views.  In  the  United  States,  however,  that 
idea  does  not  obtain  at  all,  and,  what  is  of  scarcely  less  impor¬ 
tance,  it  never  has  obtained.  No  distinction  is  recognized  of 
governing  and  governed  classes,  and  the  problem  of  govern¬ 
ment  is,  in  effect,  an  effort  on  the  part  of  society  as  a  whole 
to  learn  and  apply  to  itself  the  art  of  government. 

Bearing  this  in  mind,  it  becomes  apparent  that  the  immense 
tide  of  immigration  into  the  United  States  is  a  continually  dis¬ 
turbing  factor.  The  immigrants  come  from  many  countries,  a 
very  large  proportion  of  them  being  of  the  classes  which,  in 
their  old  homes,  from  time  out  of  mind,  have  been  governed. 
Arriving  in  America,  they  shortly  become  citizens  in  a  society 
which  undertakes  to  govern  itself.  However  well-disposed  they 
may  be  as  a  rule,  they  have  not  had  experience  in  self-govern¬ 
ment,  nor  do  they  always  share  the  ideas  which  have  expressed 
themselves  in  the  Constitution  of  the  United  States.  This  for¬ 
eign  element  settles  largely  in  the  cities  of  the  country.  It  is 
estimated  that  the  population  of  New  York  City  conta  ins  pjghi.y 
f^cemtjofjigpple  who  either  are  foreign-bom,  or  who  are  the 
cMldren  of  foreign-born  parents.  Consequently,  in  a  city  like 
New  York,  the  problem  of  learning  and  applying,  the  art  of 
government  is  handed  over  to  a  population  that  begins  in  point 
of  experience  very  low  down.  In  many  of  the  cities  of  .  the 
United  States,  indeed  in  almost  all  of  them,  the  population  not 
only  is  thus  largely  untrained  in  the  art  of  self-government, 
but  it  is  not  even  homogeneous.  So  that  an  American  city  is 
confronted  not  only  with  the  necessity  of  instructing  large  and 
rapidly  growing  bodies  of  people  in  the  art  of  government, 
but  it  is  compelled  at  the  same  time  to  assimilate  strangely 
different  component  parts  into  an  American  community.  It 
will  be  apparent  to  the  student  that  either  one  of  these  func¬ 
tions  by  itself  would  be  difficult  enough.  When  both  are 
found  side  by  side  the  problem  is  increasingly  difficult  as  to 
each.  Together  they  represent  a  problem  such  as  confronts 
no  city  in  the  United  Kingdom,  or  in  Europe. 

The  American  city  has  had  problems  to  deal  with  also  of  a 
material  character,  quite  different  from  those  which  have  con¬ 
fronted  the  cities  of  the  Old  World.  With  the  exception  of 


430 


THE  STATE  GOVERNMENTS 


PART  II 


Boston,  Philadelphia,  Baltimore,  New  Orleans,  and  New  York, 
there  is  no  American  city  of  great  consequence  whose  roots  go 
back  into  the  distant  past  even  of  America.  American  cities 
as  a  rule  have  grown  with  a  rapidity  to  which  the  Old  World 
presents  few  parallels.  London,  in  the  extent  of  its  growth, 
but  not  in  the  proportion  of  it,  Berlin  since  1870,  and  Rome 
in  the  last  few  years,  are  perhaps  the  only  places  in  Europe 
which  have  been  compelled  to  deal  with  this  element  of  rapid 
growth  in  anything  like  a  corresponding  degree.  All  of  these 
cities,  London,  Berlin,  and  Rome,  are  the  seats  of  the  national 
government,  and  receive  from  that  source  more  or  less  help  and 
guidance  in  their  development.  In  all  of  them  an  immense 
nucleus  of  wealth  existed  before  this  great  and  rapid  growth 
began.  The  problem  in  America  has  been  to  make  a  great 
city  in  a  few  years  out  of  nothing.  There  has  been  no  nucleus 
of  wealth  upon  which  to  found  the  structure  which  every  suc¬ 
ceeding  year  has  enlarged.  Recourse  has  been  had  of  neces¬ 
sity,  under  these  conditions,  to  the  freest  use  of  the  public 
credit.  The  city  of  Brooklyn  and  the  city  of  Chicago,  each 
with  a  population  of  a  million  or  more  of  people,1  are  but 
little  more  than  fifty  years  old.  In  that  period  everything 
has  been  created  out  of  the  fields.  The  houses  in  which  the 
people  live,  the  water-works,  the  paved  streets,  the  sewers, 
everything  which  makes  up  the  permanent  plant  of  a  city,  all 
have  been  produced  while  the  city  has  been  growing  from  year 
to  year  at  a  fabulous  rate.  Besides  these  things  are  to  be 
reckoned  the  public  schools,  the  public  parks,  and  in  the  case 
of  Brooklyn,  the  great  bridge  connecting  it  with  New  York, 
two -thirds  of  the  cost  of  which  is  borne  by  Brooklyn.  Looked 
at  in  this  light  the  marvel  would  seem  to  be,  not  so  much  that 
the  American  cities  are  justly  criticisable  for  many  defects, 
but  rather  that  results  so  great  have  been  achieved  in  so  short 
a  time. 

The  necessity  of  doing  so  much  so  quickly  has  worked  to 
the  disadvantage  of  the  American  city  in  two  ways.  First, 
it  has  compelled  very  lavish  expenditure  under  great  pressure 
for  quick  results.  This  is  precisely  the  condition  under  which 
the  best  trained  business  men  make  their  greatest  mistakes, 


l  Chicago  has  more  than  1,000,000  and  Brooklyn  over  900,000. 


chap,  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  431 


and  are  in  danger  of  running  into  extravagance  and  wasteful¬ 
ness.  No  candid  American  will  deny  that  American  cities 
have  suffered  largely  in  this  way,  not  alone  from  extravagance 
and  wastefulness,  but  also  from  dishonesty;  but  in  estimating 
the  extent  of  the  reproach,  it  is  proper  to  take  into  considera¬ 
tion  these  general  conditions  under  which  the  cities  have  been 
compelled  to  work.  The  second  disadvantage  which  American 
cities  have  laboured  under  from  this  state  of  things  has  been 
then  inability  to  pi o vide  adequately  for  their  current  needs, 
while  discounting  the  future  so  freely  in  order  to  provide  their 
permanent  plant.  When  the  great  American  cities  have  paid 
for  the  permanent  plant  which  they  have  been  accumulating 
dining  the  last  half  century,  so  that  the  duty  which  lies  before 
them  is  chiefly  that  of  caring  adequately  for  the  current  life  of 
their  population,  a  vast  improvement  in  all  these  particulars 
may  reasonably  be  expected.  In  other  words,  time  is  a  neces¬ 
sary  element  in  making  a  great  city,  as  it  is  in  every  other 
great  and  enduring  work.  American  cities  are  judged  by  their 
size  rather  than  by  the  time  which  has  entered  into  their 
growth.  It  cannot  be  denied  that  larger  results  could  have 
been  produced  with  the  money  expended  if  it  always  had  been 
used  with  complete  honesty  and  good  judgment.  But  to  make 
-an  intelligent  criticism  upon  the  American  city,  in  its  failures 
upon  the  material  side,  these  elements  of  difficulty  must  be 
taken  into  consideration. 

Another  particular  in  which  the  American  city  may  be 
thought  to  have  come  short  of  what  might  have  been  hoped 
for,  may  be  described  in  general  terms  as  a  lack  of  foresight. 
It  would  have  been  comparatively  easy  to  have  preserved  in 
all  of  them  small  open  parks,  and  generally  to  have  made  them 
more  beautiful,  if  there  had  been  a  greater  appreciation  of  the 
need  for  these  things  and  of  the  growth  the  cities  were  to 
attain  to.  The  Western  cities  probably  have  erred  in  this 
regard  less  than  those  upon  the  Atlantic  coast.  But  while  it 
is  greatly  to  be  regretted  that  this  large  foresight  has  not  been 
displayed,  it  is  after  all  only  repeating  in  America  what  has 
taken  place  in  Burope.  The  improvement  of  cities  seems 
everywhere  to  be  made  by  tearing  down  and  replacing  at  great 
cost,  rather  than  by  a  far-sighted  provision  for  the  demands 
and  opportunities  of  the  future.  These  unfortunate  results 


432 


THE  STATE  GOVERNMENTS 


PART  II 


in  America  have  flowed  largely  from  two  causes:  first,  fiom 
inability  on  the  part  of  the  cities  to  appreciate  in  advance  the 
phenomenal  growth  that  has  come  upon  them;  and  second, 
from  the  frequent  tendency  of  population  to  grow  in  precisely 
the  direction  where  it  was  not  expected  to.  A  singular  illus¬ 
tration  of  this  last  factor  is  to  be  found  in  the  city  of  Wash¬ 
ington.  The  Capitol  was  made  to  face  towards  the  east,  under 
the  impression  that  population  would  settle  in  that  direction. 
As  matter  of  fact  the  city  has  grown  towards  the  west,  so  that 
the  Capitol  stands  with  its  back  to  the  city  and  faces  a  district 

that  is  scarcely  built  upon  at  all. 

Probably  no  detail  strikes  the  eye  of  the  fpreigner^more 
unfavourably  in  connection  with  the  average  American  city 
than  tli^iQmi^iavmg-Jif  the  streets  ajaxL.theiJ-3aek^f-^leaji^ 
ness.  The  comparison  with  cities  of  Europe  in  these  respects 
is  immensely  to  the  disadvantage  of  the  American  city.  But, 
in  this  connection,  it  is  not  unfair  to  call  attention  to  the  fact 
that  the  era  of  good  paving  and  clean  streets  in  Europe  is 
scarcely  more  than  thirty  years  old.  Poor  as  is  the  condition 
of  the  streets  in  most  American  cities  now,  it  would  be  risking 
very  little  to  say  that  it  would  average  much  higher  than  ten 
years  ago.  There  are  several  contributing  causes  which  are 
reflected  in  this  situation  that  repre§en^diJftnu]ju£aTrom  which 
most  European  cities  are  free.  In  the  first  place,  frqst_^tr]kes 
much  deeperJnAmerica,  and  is  more  trying  to  the  pavements 
in  every  way.  In  the  next  place,  the  streets  are  more  often 

disturbed  in  commctiqnjvitlLgaA^  an(i  tele' 

graph  service,  than  in  European  cities.  But,  apart  from  these 
incidental  difficulties,  the  fundamental  trouble  in  connection 
with  the  streets  of  American  cities  is  the 
appropriations  to  put  them  in  first-class  condition  and  to  keep 
them  so,  both  as  to  paving  and  as  to  cleaning.  The  reason 
for  this  has  been  pointed  out. 

All  the  troubles,  however,  which  have  marked  the  develop¬ 
ment  of  cities  in  the  United  States  are  not  due  to  these  causes. 
Cities  in  the  United  States,  as  forms  of  government,  are  of 
comparatively  recent  origin.  The  city  of  Boston,  for  example, 
in  the  State  of  Massachusetts,  although  the  settlement  was 
founded  more  than  two  hundred  and  fifty  years  ago,  received 
its  charter  as  a  city  so  recently  as  1822.  The  city  of  Brooklyn 


chap,  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  433 


received  its  charter  from  the  State  of  New  York  in  1835  In 
other  words,  the  transition  from  village  and  town  government 
into  government  by  cities,  has  simply  followed  the  transition 
oi  small  places  into  large  communities.  This  suggests  another 
distinction  between  the  cities  of  the  United  States  and  those 
ot  Ureat  Britain.  The  great  cities  of  England  and  of  Europe, 
with  few  exceptions,  have  their  roots  in  the  distant  past. 
Many  of  their  privileges  and  chartered  rights  were  wrested 
from  the  Crown  in  feudal  times.  Some  of  these  privileges 
have  been  retained,  and  contribute  to  the  income,  the  pride 
and  the  influence  of  the  municipality.  The  charter  of  an 
American  city  represents  no  element  of  prestige  or  inspiration. 
It  is  only  the  legal  instrument  which  gives  the  community 
authority  to  act  as  a  corporation,  and  which  defines  the  duties 
of  its  officers.  The  motive  for  passing  from  town  government 
to  city  government  in  general  has  been  the  same  everywhere 
—  to  acquire  a  certain  readiness  of  action,  and  to  make  more 
available  the  credit  of  the  community  in  order  to  provide 
adequately  for  its  own  growth.  The  town  meeting,  in  which 
every  citizen  takes  part,  serves  its  purpose  admirably  in  com¬ 
munities  up  to  a  certain  size,  or  for  the  conducting  of  public 
work  on  not  too  large  a  scale.  But  the  necessity  for  efficiency 
m  providing  for  the  needs  of  growth  has  compelled  rapidly 
growing  communities,  in  all  the  States,  to  seek  the  powers  of 
a  corporation  as  administered  through  a  city  government, 
wowing  thus  out  of  the  town,  it  happened  very  naturally 
that  the  first  conception  of  the  city  on  the  part  of  Americans 
was  that  which  had  applied  to  the  town  and  the  village  as 
local  subdivisions  of  the  commonwealth. 

Charters  were  framed  as  though  cities  were  little  States. 
Americans  are  only  now  learning,  after  many  years  of  bitter 
3xpenence,  that  they  are  not  so  much  little  States  as  large  cor¬ 
porations.  Many  of  the  mistakes  which  have  marked  the  pro«- 
:ess  of  American  cities  up  to  this  point  have  sprung  from  that 
lefective  conception.  The  aim  deliberately  was,  to  make  a  city 
government  where  no  officer  by  himself  should  have  power 
mough  to  do  much  harm.  The  natural  result  of  this  was  to 
create  a  situation  where  no  officer  had  power  to  do  much  good. 

eanwhile  bad  men  united  for  corrupt  purposes,  and  the  whole 
>rganization  of  the  city  government  aided  such  in  throwing 

2  F 


434 


THE  STATE  GOVERNMENTS 


PART  11 


responsibility  from  one  to  another.  Many  recent  city  charters 
in  the  United  States  proceed  upon  the  more  accurate  theory  that 
cities,  in  their  organic  capacity,  are  chiefly  large  corporations. 
The  better  results  flowing  from  this  theory  are  easily  made 
clear.  Americans  are  sufficiently  adept  in  the  administration 
of  large  business  enterprises  to  understand  that,  in  any  such 
undertaking,  some  one  man  must  be  given  the  power  of  direc¬ 
tion  and  the  choice  of  his  chief  assistants ;  they  understand 
that  power  and  responsibility  must  go  together  from  the  top  to 
the  bottom  of  every  successful  business  organization.  Conse¬ 
quently,  when  it  began  to  be  realized  that  a  city  was  a  busi¬ 
ness  corporation  rather  than  an  integral  part  of  the  State,  the 
unwillingness  to  organize  the  city  upon  the  line  of  concentrated 
power  in  connection  with  concentrated  responsibility  began  to 
disappear.  The  charter  of  the  city  of  Brooklyn  is  probably  as 
advanced  a  type  as  can  be  found  of  the  results  of  this  mode 

of  thinking. 

In  Brooklyn  the  executive  side  of  the  city  government  is  rep¬ 
resented  by  the  mayor  and  the  various  heads  of  departments. 
The  legislative  side  consists  of  a  common  council  of  nineteen 
members,  twelve  of  whom  are  elected  from  three  districts  each 
having  four  aldermen,  the  remaining  seven  being  elected  as 
aldermen  at  large  by  the  whole  city.  The  people  elect  three 
city  officers  besides  the  board  of  aldermen;  the  mayor,  who  is 
the  real,  as  well  as  the  nominal,  head  of  the  city  ;  the  comp¬ 
troller,  who  is  practically  the  book-keeper  of  the  city ;  and  the 
auditor,  whose  audit  is  necessary  for  the  payment  of  every 
bill  against  the  city  whether  large  or  small.  The  mayor  ap¬ 
points  absolutely,  without  confirmation  by  the  common  coun¬ 
cil,  all  the  executive  heads  of  departments.  He  appoints, 
for  example,  the  police  commissioner,  the  fire  commissioner, 
the  health  commissioner,  the  commissioner  of  city  works,  the 
corporation  counsel  or  counsellor  at  law,  the  city  treasurer, 
the  tax  collector,  and  in  general  all  the  officials  who  are  chargee 
with  executive  duties.  These  officials  in  turn  appoint  then 
own  subordinates,  so  that  the  principle  of  defined  responsi 
bility  permeates  the  city  government  from  top  to  bottom 
The  mayor  also  appoints  the  board  of  assessors,  the  board  o 
education,  and  the  board  of  elections.  The  executive  officer 
appointed  by  the  mayor  are  appointed  for  a  term  of  two  years 


chap,  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  435 


that  is  to  say,  for  a  term  similar  to  his  own.  The  mayor  is 
elected  at  the  general  election  in  November;  he  takes  office 
on  the  first  of  January  following,  and  for  one  month  the  great 
departments  of  the  city  are  carried  on  for  him  by  the  appointees 
of  his  predecessor.  On  the  first  of  February  it  becomes  his 
dut^  to  appoint  his  own  heads  of  departments,  and  inasmuch 
as  they  serve  for  the  same  term  as  himself,  each  incoming 
mayor  thus  has  the  opportunity  to  make  an  administration  in 
all  its  parts  in  sympathy  with  himself.  Each  one  of  these 
great  executive  departments  is  under  the  charge  of  a  single 
head,  the  charter  of  the  city  conforming  absolutely  to  the 
theory  that  where  executive  work  is  to  be  done  it  should  be 
committed  to  the  charge  of  one  man.  Where  boards  of  officials 
exist  in  Brooklyn,  it  is  because  the  work  committed  to  them 
is  discretionary  more  than  it  is  executive  in  character.  These 
boards,  also,  are  appointed  by  the  mayor  without  confirma¬ 
tion  by  the  board  of  aldermen,  but  they  are  appointed  for 
terms  not  coterminous  with  his  own;  so  that,  in  most  cases, 
no  mayor  would  appoint  the  whole  of  any  such  board  unless 
he  were  to  be  twice  elected  by  the  people.  In  other  words, 
with  quite  unimportant  exceptions,  the  charter  of  Brooklyn 
a  city  with  900,000  inhabitants,  makes  the  mayor  entirely 
responsible  for  the  conduct  of  the  city  government  on  its 
executive  side,  and,  in  holding  him  to  this  responsibility, 

equips  him  fearlessly  with  the  necessary  power  to  discharge 
his  trust.  & 

This  charter  went  into  effect  on  the  first  of  January  1882. 
It  has  been  found  to  have  precisely  the  merits  and  the  de¬ 
fects  which  one  might  expect  of  such  an  instrument.  A 
strong  executive  can  accomplish  satisfactory  results ;  a  weak 
one  can  disappoint  every  hope.  The  community,  however  is 
so  well  satisfied  that  the  charter  is  a  vast  improvement  on  any 
system  which  it  has  tried  before,  that  no  voice  is  raised  against 
it.  It  has  had  one  notable  and  especially  satisfactory  effect. 

It  can  be  made  clear  to  the  simplest  citizen  that  the  entire 
character  of  the  city  government  for  two  years  depends  upon 
the  man  chosen  for  the  office  of  mayor.  As  a  consequence 
more  people  have  voted  in  Brooklyn  on  the  subject  of  the 
mayoralty  than  have  voted  there  as  to  who  should  be  governor 
3f  the  State.  This  is  a  great  and  a  direct  gain  for  good  city 


436 


THE  STATE  GOVERNMENTS 


PART  II 


government,  because  it  creates  and  keeps  alert  a  strong  public 
sentiment,  and  tends  to  increase  the  interest  of  all  citizens  m 
the  affairs  of  their  city.  In  the  absence  of  a  historic  past 
which  ministers  to  civic  pride,  and  in  the  presence  of  many 
thousands  of  new-comers  at  every  election,  this  effect  is  espe¬ 
cially  valuable.  It  may  also  be  said  that  under  present  condi¬ 
tions  the  voting  is  more  intelligent  than  formerly.  The  issue 
is  so  important,  yet  so  simple,  that  it  can  be  made  clear  even 
to  people  who  have  lived  but  a  short  time  in  the  city.  I  he 
same  influences  tend  to  secure  for  the  city  the  services,  as 
mayor,  of  a  higher  grade  of  men,  because  under  such  a  charter 
the  mayor  is  given  power  and  opportunity  to  accomplish  some¬ 
thing.  It  appeals  to  the  best  that  is  in  a  man  as  strongly  as 
it  exposes  him  td  the  fire  of  criticism  if  he  does  not  do  well. 

In  undertaking  to  administer  this  charter,  as  the  first  mayor 
to  whom  such  powers  had  been  committed,  the  writer  adopted 
two  principles  which  he  believed  to  be  essential  to  success. 
In  the  first  place,  he  determined  to  hold  each  head  of  depart¬ 
ment  responsible  for  results  within  his  department;  and  m 
the  second  place,  he  determined  to  hold  himself  entirely  aloof 
from  the  use  of  patronage,  except  in  so  far  as  the  charter  of 
the  city,  in  express  terms,  made  it  his  duty  to  make  appoint¬ 
ments.  The  effect  of  this  attitude  towards  his  appointees  was 
to  leave  them  entirely  free  in  the  choice  of  their  subordinates. 
Being  free,  they  could  justly  be  held  responsible,  to  the  fullest 
extent,  for  results.  Further  than  that,  being  free  from  press¬ 
ure  from  the  mayor,  they  were  much  stronger  to  resist  pressure 
as  to  patronage  from  outsiders  than  otherwise  they  would  have 
been.  Another  effect  of  the  mayor’s  attitude  with  reference 
to  patronage  was  to  secure  for  himself  the  confidence  of  the 
community,  without  regard  to  party,  to  an  unusual  extent. 
Any  alarm  there  might  have  been,  as  to  the  use  of  the  great 
and  unusual  powers  committed  to  the  mayor  by  the  charter, 

was  quieted  at  once.  , 

The  duties  of  the  mayor  under  the  charter  may  be  considered 

under  three  heads.  First,  in  his  relation  to  the  executive 
work  of  the  city ;  second,  in  his  relation  to  the  common  coun¬ 
cil  or  local  legislature;  third,  in  his  relation  to  the  legislature 

of  the  State.  >  *11. 

The  successful  use  of  the  power  of  appointment,  m  the  selec- 


chap,  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  437 


tion  of  efficient  heads  of  departments,  of  course  underlies  the 
success  of  a  city  administration  on  its  executive  side.  The 
heads  of  departments  having  been  appointed,  it  was  the  cus¬ 
tom  of  the  writer  to  hold  a  meeting  in  the  mayor’s  office  with 
all  his  executive  appointees,  once  every  week,  excepting  during 
the  summer  when  the  common  council  was  not  in  session. 
This  meeting  served  several  purposes.  The  minutes  of  the 
common  council  at  their  previous  meeting  were  laid  before 
this  informal  gathering,  and  the  mayor  received  the  advice  of 
the  officer  whose  department  would  be  affected  by  any  proposed 
resolution  or  ordinance,  as  to  its  probable  effect.  When  a 
question  was  brought  up  of  general  interest  to  the  city  the 
whole  company  discussed  it,  giving  to  the  mayor  the  advan¬ 
tage  of  their  experience  and  judgment.  These  weekly  councils 
were  of  great  value  to  the  mayor  in  determining  his  attitude 
on  the  various  questions  raised  during  his  term  by  the  common 
council  of  the  city,  every  resolution  of  which  body  had  by  law 
to  be  passed  upon  by  the  mayor,  and  receive  either  his  approval 
or  his  veto.  These  gatherings  of  the  executive  officers  of  the 
city  were  useful  in  other  ways  than  this.  They  made  all  heads 
of  departments  personally  acquainted  with  each  other,  and  con¬ 
verted  the  machinery  of  the  city  government,  from  separate 
and  independent  departments,  into  one  organization  working 
in  complete  harmony  and  with  singleness  of  aim. 

The  mayor’s  oversight  of  the  executive  work  of  the  city,  in 
its  current  aspect,  was  further  maintained  by  quarterly  reports 
submitted  from  each  of  the  large  departments.  The  mayor’s 
office,  in  an  American  city,  is  in  receipt  of  daily  complaints 
touching  this  or  that  matter  affecting  citizens.  The  receipt  of 
all  complaints  was  immediately  acknowledged  to  the  persons 
who  made  them,  if  they  came  by  mail,  and  the  complaints  were 
forwarded  at  once  to  the  proper  department  for  action  or  ex¬ 
planation.  The  reply  was  made  to  the  mayor’s  office,  and  was 
3ommunicated  without  delay  to  the  maker  of  the  complaint, 
ff  remedy  was  available,  this  method  secured  its  prompt  appli¬ 
cation.  If  the  matter  were  beyond  reach  of  remedy,  the  citizen 
lad  at  least  the  satisfaction  of  knowing  why.  The  multiplicity 
md  character  of  these  complaints  gave  the  mayor  a  daily 
insight  into  the  efficiency  of  the  departments.  By  these 
methods,  the  mayor  was  able  to  keep  himself  almost  as  well 


438 


THE  STATE  GOVERNMENTS 


PART  II 


informed  as  to  the  work  in  each  department  of  the  city  as  the 
head  of  a  great  business  house  is  informed  as  to  the  depart¬ 
ments  into  which  his  business  is  divided.  Nor  need  the  com¬ 
parison  stop  there.  The  mayor  was  able  to  bring  the  power 
and  influence  of  his  office  to  bear,  to  remedy  abuses  or  to  sug¬ 
gest  improvements  in  methods,  with  the  same  directness  and 

efficiency. 

The  mayor’s  duties  in  relation  to  the  common  council  ot  the 
city  are  chiefly  in  connection  with  the  obligation,  laid  upon 
him  by  the  charter,  to  approve  or  disapprove  every  resolution 
passed  by  that  body.  The  mayor’s  veto  is  fatal,  unless  over¬ 
ridden  by  a  two-thirds  vote  of  all  the  members  elected  to  the 
council.  For  three  years  out  of  four  during  which  the  writer 
served  as  mayor,  the  common  council  was  politically  antago¬ 
nistic  to  him,  half  of  the  time  in  the  proportion  of  fourteen  to 
five.  Notwithstanding  this,  only  two  vetoes  were  overridden 
in  the  whole  of  his  four  years  of  service.  Two  influences  prob¬ 
ably  contributed  to  this  result.  First,  the  care  with  which, 
under  the  advice  of  his  appointees,  the  mayor  took  up  his 
positions:  and  second,  the  mayor’s  refusal  to  implicate  him¬ 
self,  in  any  way,  with  the  use  of  patronage.  Partisan  oppo¬ 
sition  largely  disappeared,  before  a  spirit  manifestly  free  from 
self-seeking  and  from  partisanship.  The  same  influences  led 
to  unusual  co-operation,  on  the  part  of  the  common  council, 
in  forwarding  the  plans  of  the  mayor  in  the  direction  of  posi¬ 
tive  action.  The  harmony  between  the  executive  and  the 
legislature  of  the  city  was  scarcely  less  complete,  during  this 
interval,  to  the  great  advantage  of  the  city,  than  was  the  har¬ 
mony  between  the  different  executive  departments  themselves. 

The  relation  of  the  mayor  to  the  legislature  of  the  State 
proved  to  be  important  to  an  extent  not  easy  to  be  imagined. 
The  charter  of  a  city,  coming  as  it  does  from  the  legislature, 
is  entirely  within  the  control  of  the  legislature.  Just  as  there 
is  no  legal  bar  to  prevent  the  legislature  from  recalling  the 
charter  altogether,  so  there  is  no  feature  of  the  charter  so 
minute  that  the  legislature  may  not  assume  to  change  it.  In 
the  State  of  New  York  there  is  no  general  law  touching  the 
government  of  cities,  and  the  habit  of  interference  m  the 
details  of  city  action  has  become  to  the  legislature  almost  a 
second  nature.  In  every  year  of  his  term,  the  writer  was  com- 


chap,  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  439 


pelled  to  oppose  at  Albany,  the  seat  of  the  State  legislature, 
legislation  seeking  to  make  an  increase  in  the  pay  of  police¬ 
men  and  firemen,  without  any  reference  to  the  financial  ability 
of  the  city,  or  the  other  demands  upon  the  city  for  the  ex¬ 
penditure  of  money.  Efforts  were  made,  also,  at  one  time,  to 
legislate  out  of  office  some  of  the  officials  who  had  been  ap¬ 
pointed  in  conformity  to  the  charter.  New  and  useless  offices 
were  sought  to  be  created,  and  the  mayor  found  that  not  the 
least  important  of  his  duties,  as  mayor,  was  to  protect  the  city 
from  unwise  and  adverse  legislation  on  the  part  of  the  State. 
It  is  a  curious  circumstance  that  most  of  these  propositions 
had  their  origin  with  members  of  the  legislature  elected  to 
represent  different  districts  of  the  city  itself.  The  same  influ¬ 
ences  which  made  the  administration  strong  with  the  common 
council,  at  home,  made  it  also  strong  with  the  legislature  at 
Albany,  so  that,  although  for  one  or  two  years  the  power  to 
make  changes  rested  with  a  majority  at  Albany  politically 
antagonistic,  no  law  objected  to  by  the  mayor,  during  this 
interval,  was  placed  upon  the  statute-book.  The  city  itself  is 
compelled  at  times  to  seek  legislation  for  the  enlargement  of 
its  powers ;  that  is  to  say,  the  powers  committed  to  a  city  are 
strictly  limited  to  those  defined  by  the  charter  or  granted  by 
special  acts  of  the  legislature.  Consequently,  when  an  unfore¬ 
seen  situation  is  to  be  dealt  with,  calling  for  unusual  methods 
or  powers,  it  is  necessary  to  secure  authority  to  this  end  from 
the  legislature  of  the  State.  The  writer  found  the  same  gen¬ 
eral  attitude,  which  has  been  referred  to  scr  often,  effectual  in 
this  regard  also,  so  that  almost  every  bill  which  he  desired  in 
the  interest  of  the  city  was  enacted  into  law,  and  this  alike 
by  legislatures  politically  in  sympathy  with  the  city  adminis¬ 
tration  and  by  legislatures  politically  antagonistic  to  it.  It  is 
not  too  much  to  say,  however,  that  the  greatest  anxieties  of 
his  term  sprang  from  the  uncertainties  and  difficulties  of  this 
annual  contest,  on  the  one  hand  to  advance  the  interest  of  the 
city,  and  on  the  other  to  save  it  from  harm  in  its  relations  to 
the  law-making  power  of  the  State. 

Imitating  this  charter  of  Brooklyn,  the  city  of  Philadelphia, 
still  more  recently,  has  obtained  a  new  charter  involving  a 
great  departure  in  the  same  direction  from  old  methods.  Bos¬ 
ton  and  New  York  both  have  moved  partly  along  the  same 


440 


THE  STATE  GOVERNMENTS 


PART  II 


line,  each  with  admitted  advantage  to  the  city,  although  neither 
has  gone  so  far  as  Brooklyn  or  Philadelphia.  Several  smaller 
places  have  obtained  charters  of  the  same  kind.  It  is  not  to 
be  supposed  that  this  new  form  of  city  charter  is  the  result 
altogether  of  abstract  thinking.  It  has  grown  out  of  bitter 
experiences.  "When  the  inhabitants  of  a  city  found  that  they 
did  not  receive,  as  matter  of  fact,  the  good  government  which 
they  desired,  it  did  not  at  first  occur  to  them  that  the  trouble 
was  to  a  large  extent  fundamental  in  their  form  of  charter; 
or,  if  it  did,  the  first  effort  at  remedy  led  to  worse  mistakes 
than  before.  Starting  with  the  theory  that  the  path  to  safety 
was  through  division  of  power,  they  resorted  to  all  manner  of 
expedients  which  would  compass  that  end.  They  established, 
for  instance,  police  boards  and  fire  boards,  which  at  different 
times  were  made  to  consist  of  three  members,  and  at  other 
times  of  four,  the  latter  being  known  in  American  parlance  as 
non-partisan.1  It  was  supposed  that  a  single  individual  might 
be  tempted  to  use  his  department  unfairly  in  the  interest  of 
the  party  to  which  he  belonged,  but  that  by  associating  him 
with  others  of  different  parties  this  tendency  would  be  over¬ 
come.  It  turned  out,  however,  that  the  moment  no  one  in 
particular  was  to  blame,  partisanship  took  complete  possession 
of  the  administration  of  every  department. 

When  one  reflects  that  in  the  government  of  the  United  States 
the  immense  administrative  departments,  like  the  treasury  and 
the  post-office,  have,  from  the  beginning  of  the  government, 
been  committed  to  the  care  of  a  single  man,  it  seems  strange 
that,  in  their  cities,  Americans  should  have  been  so  unwilling 
to  proceed  upon  the  same  theory.  The  reason  probably  is  that 
the  city,  as  above  pointed  out,  has  been  evolved  from  the  town 
by  the  simple  process  of  enlargement.  In  the  town  the  theory 
of  division  of  power  has  been  acted  upon  with  substantial  uni¬ 
formity,  and  in  small  communities  has  worked  well.  The 
attempt  to  act  upon  the  same  lines  in  the  great  and  rapidly 
growing  cities  of  the  country  has,  in  the  judgment  of  many, 
been  as  instrumental  as  any  other  one  element  in  causing  the 
unsatisfactory  results  which  have  marked  the  progress  of  many 
American  cities.  For  the  purposes  of  this  chapter  it  is  not 

1  Non-partisan  practically  means  that  the  two  great  parties  are  equally  rep¬ 
resented  upon  it, 


chap,  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  441 


necessary  to  enlarge  further  upon  this  thought.  It  is  empha¬ 
sized  thus  far  for  the  purpose  of  showing  that  all  the  large 
class  of  difficulties  which  American  cities  have  been  obliged 
to  face  by  reason  of  faulty  charters  are  not  irremediable.  The 
actual  process  of  change  from  one  system  of  charter  to  another 
has  been  marked  incidentally  by  one  unfortunate  effect.  The 
city  charter,  coming  as  it  does  from  the  legislature,  lies  entirely 
within  the  control  of  the  legislature.  The  many  appeals  to  the 
legislature  for  charter  amendment  of  one  kind  and  another 
have  bred  a  habit  in  some  of  the  States,  if  not  in  all,  of  con¬ 
stant  interference  by  the  legislature  with  the  local  details  of 
city  action.  This  interference,  though  often  prompted  by  a 
genuine  desire  to  relieve  a  city  from  pressing  evils,  has  tended 
very  greatly  to  lessen  the  sense  of  responsibility  on  the  part 
of  local  officials,  and  upon  the  part  of  communities  themselves. 
It  is  one  of  the  best  effects  of  Brooklyn’s  charter,  that  it  has 
helped  to  create  in  that  city  a  very  decided  spirit  of  home 
rule,  which  is  ready  to  protest  at  any  moment  against  inter¬ 
ference  on  the  part  of  the  State  with  local  matters. 

It  remains  to  be  said  that  the  one  organic  problem  in  con¬ 
nection  with  the  charters  of  cities,  which  apparently  remains 
as  far  from  solution  as  ever  in  America,  is  that  which  concerns 
the  legislative  branch  of  city  government.  In  some  cities  the 
legislative  side  is  represented  by  two  bodies,  or  Houses,  known 
by  different  names  in  different  cities,  and  presenting  the  same 
general  characteristics  as  a  State  legislature  with  its  upper 
and  lower  House.  The  most  conspicuous  instances  of  this  kind 
are  furnished  by  the  city  of  Boston  and  the  city  of  Philadel¬ 
phia.  In  all  the  cities  of  New  York  State,  the  legislative 
branch  consists  of  a  single  chamber  indifferently  spoken  of  as 
the  board  of  aldermen  or  the  common  council.  But  whether 
these  bodies  have  been  composed  of  one  House  or  two,  the 
moment  a  city  has  become  large  they  have  ceased  to  give  satis¬ 
factory  results.  Originally  these  bodies  were  given  very  large 
powers,  in  order  to  carry  out  to  the  utmost  the  idea  of  local 
self-government.  As  a  rule  they  have  so  far  abused  these 
powers  that  almost  everywhere  the  scope  of  their  authority 
has  been  greatly  restricted.  In  the  city  of  New  York  that 
tendency  has  been  acted  upon  to  so  great  an  extent  as  to 
deprive  the  common  council  of  every  important  function  it 


442 


THE  STATE  GOVERNMENTS 


PART  II 


ever  possessed,  except  the  single  power  to  grant  public  fran¬ 
chises.  How  greatly  they  have  abused  this  remaining  power 
is  unfortunately  matter  of  public  record.  The  powers  thus 
taken  away  from  the  common  council,  are  ordinarily  lodged 
with  boards  made  up  of  the  higher  city  officials.  Even  in  the 
city  of  New  York  it  has  seldom  been  the  case  that  the  mayor 
of  the  city  has  not  been  a  man  of  good  repute  and  of  some 
parts.  As  a  general  proposition,  it  is  found  in  American  cities 
that  the  larger  the  constituency  to  which  a  candidate  must 
appeal,  and  the  more  important  the  office,  the  more  of  a  man 
the  candidate  must  be.  What  may  be  the  outcome  of  this 
difficulty  as  to  the  legislative  body  in  cities,  it  is  impossible 
to  say.  Sometimes  it  seems  almost  as  though  the  attempt 
would  be  made  to  govern  cities  without  any  local  legislature. 
But,  on  the  other  hand,  there  are  so  many  matters  in  regard 
to  which  such  a  body  ought  to  have  power,  that  thus  far  no 
one  has  ventured  seriously  to  take  so  extreme  a  view.  It  may 
fairly  be  said  to  be,  therefore,  the  great  unsolved  organic  prob¬ 
lem  in  connection  with  municipal  government  in  the  United 
States.  That  it  is  so,  illustrates  with  vividness  the  justice 
of  the  American  view  that  it  is  a  dangerous  thing,  in  wholly 
democratic  communities,  to  make  the  legislative  body  supreme 
over  the  executive. 

Thus  far  in  this  chapter,  the  shortcomings  of  the  American 
city  have  been  admitted,  and  the  effort  has  been  made  to  show 
the  peculiar  difficulties  with  which  such  a  city  has  to  deal.  It 
ought  to  be  said  that,  despite  all  of  these  difficulties,  the  average 
American  city  is  not  going  from  bad  to  worse.  There  is  sub¬ 
stantial  reason  for  thinking  that  the  general  tendency,  even  in 
the  larger  cities,  is  towards  improvement.  Life  and  property 
are  more  secure  in  almost  all  of  them  than  they  used  to  be. 
Certainly  there  has  been  no  decrease  of  security  such  as  might 
reasonably  have  been  expected  to  result  from  increased  size. 
Less  than  a  score  of  years  ago  it  was  impossible  to  have  a  fair 
election  in  New  York  or  Brooklyn.  To-day,  and  for  the  last 
decade,  under  the  present  system  of  registry  laws,  every  elec¬ 
tion  is  held  with  substantial  fairness.  The  health  of  our  cities 
does  not  deteriorate,  but  on  the  average  improves.  So  that  in 
the  large  and  fundamental  aspect  of  the  question  the  progress, 
if  slow,  is  steady  in  the  direction  of  better  things.  It  is  not 


ciiap.  li  MUNICIPAL  GOVERNMENT  IN  UNITED  STATES  443 


strange  that  a  people  conducting  an  experiment  in  city  govern¬ 
ment  for  which  there  is  absolutely  no  precedent,  under  condi¬ 
tions  of  exceptional  difficulty,  should  have  to  stumble  towards 
correct  and  successful  methods  through  experiences  that  are 
both  costly  and  distressing.  There  is  no  other  road  towards 
improvement  in  the  coming  time.  But  it  is  probable  that  in 
another  decade  Americans  will  look  back  on  some  of  the 
scandals  of  the  present  epoch  in  city  government  with  as 
much  surprise  as  they  now  regard  the  effort  to  control  fires  by 
the  volunteer  fire  department,  which  was  insisted  upon,  even 
in  the  city  of  New  York,  until  within  twenty-five  years. 

As  American  cities  grow  in  stability,  and  provide  themselves 
with  the  necessary  working  plant,  they  approximate  more  and 
more  in  physical  conditions  to  those  which  prevail  in  most  Euro¬ 
pean  cities.  As  they  do  so,  it  is  reasonable  to  expect  that  their 
pavements  will  improve  and  the  condition  of  their  streets  be 
more  satisfactory.  American  cities,  as  a  rule,  have  a  more 
abundant  supply  of  water  than  European  cities,  and  they  are 
more  enterprising  in  furnishing  themselves  with  what  in 
Europe  might  be  called  the  luxuries  of  city  life,  but  which, 
in  America,  are  so  common  as  almost  to  be  regarded  as  neces¬ 
sities.  Especially  is  this  true  of  every  convenience  involving 
the  use  of  electricity.  There  are  more  telephone  wires,  for 
example,  in  New  York  and  Brooklyn,  than  in  the  whole  of 
the  United  Kingdom.  The  problem  of  placing  these  wires 
underground  therefore,  to  take  in  passing  an  illustration,  of 
another  kind,  of  the  difficulties  of  city  government  in  America, 
is  vastly  greater  than  in  any  city  abroad,  because  the  multipli¬ 
cation  of  the  wires  is  so  constant  and  at  so  rapid  a  rate  that 
as  fast  as  some  are  placed  beneath  the  surface,  those  which 
have  been  strung  while  this  process  has  been  going  on  seem 
as  numerous  as  before  the  underground  movement  began. 

It  may  justly  be  said,  therefore,  that  the  American  city,  if 
open  to  serious  blame,  is  also  deserving  of  much  praise.  Every 
one  understands  that  universal  suffrage  has  its  drawbacks,  and 
in  cities  these  defects  become  especially  evident.  It  would  be 
uncandid  to  deny  that  many  of  the  problems  of  American  cities 
spring  from  this  factor,  especially  because  the  voting  popula¬ 
tion  is  continually  swollen  by  foreign  immigrants  whom  time 
alone  can  educate  into  an  intelligent  harmony  with  the  Ameri- 


444 


THE  STATE  GOVERNMENTS 


PART  II 


can  system.  But  because  there  is  scum  upon  the  surface  of  a 
boiling  liquid,  it  does  not  follow  that  the  material,  nor  the 
process  to  which  it  is  subjected,  is  itself  bad.  Universal 
suffrage,  as  it  exists  in  the  United  States,  is  not  only  a  great 
element  of  safety  in  the  present  day  and  generation,  but  it  is 
perhaps  the  mightiest  educational  force  to  which  the  masses 
of  men  ever  have  been  exposed.  In  a  country  where  wealth 
has  no  hereditary  sense  of  obligation  to  its  neighbours,  it  is 
hard  to  conceive  what  would  be  the  condition  of  society  if 
universal  suffrage  did  not  compel  every  one  having  property 
to  consider,  to  some  extent  at  least,  the  well-being  of  the  whole 
community. 

It  is  probable  that  no  other  system  of  government  would 
have  been  able  to  cope  any  more  successfully,  on  the  whole, 
with  the  actual  conditions  that  American  cities  have  been 
compelled  to  face.  It  may  be  claimed  for  American  institu¬ 
tions,  even  in  cities,  that  they  lend  themselves  with  wonder¬ 
fully  little  friction  to  growth  and  development  and  to  the 
peaceful  assimilation  of  new  and  strange  populations.  What¬ 
ever  defects  have  marked  the  progress  of  such  cities,  no  one 
acquainted  with  their  history  will  deny  that  since  their  prob¬ 
lem  assumed  its  present  aspect,  progress  has  been  made,  and 
substantial  progress,  from  decade  to  decade.  The  problem  will 
never  be  anything  but  a  most  difficult  one,  but  with  all  its 
difficulties  there  is  every  reason  to  be  hopeful. 


PART  III 


POLITICAL  METHODS  AND  PHYSICAL 

INFLUENCES 


CHAPTER  LII 


POLITICAL  PARTIES  AND  THEIR  HISTORY 


In  the  United  States,  the  history  of  party  begins  with  the 
Constitutional  Convention  of  1787  at  Philadelphia.  In  its  de¬ 
bates  and  discussions  on  the  drafting  of  the  Constitution  there 
were  revealed  two  opposite  tendencies,  which  soon  afterwards 
appeared  on  a  larger  scale  in  the  State  conventions,  to  which 
the  new  instrument  was  submitted  for  acceptance.  These  were 
the  centrifugal  and  centripetal  tendencies  —  a  tendency  to 
maintain  both  the  freedom  of  the  individual  citizen  and  the 
independence  in  legislation,  in  administration,  in  jurisdiction, 
indeed  in  everything  except  foreign  policy  and  National  defence, 
of  the  several  States  ;  an  opposite  tendency  to  subordinate 
the  States  to  the  nation  and  vest  large  powers  in  the  central 
Federal  authority. 

The  charge  against  the  Constitution  that  it  endangered  State 
rights  evoked  so  much  alarm  that  some  States  were  induced 
to  ratify  only  by  the  promise  that  certain  amendments  should 
be  added,  which  were  accordingly  accepted  in  the  course  of 
the  next  three  years.  When  the  machinery  had  been  set  in 
motion  by  the  choice  of  George  Washington  as  President,  and 
with  him  of  a  Senate  and  a  House  of  Representatives,  the 
tendencies  which  had  opposed  or  supported  the  adoption  of 
the  Constitution  reappeared  not  only  in  Congress  but  in  the 
President’s  Cabinet,  where  Alexander  Hamilton,  secretary  of 
the  treasury,  counselled  a  line  of  action  which  assumed  aud 
required  the  exercise  of  large  powers  by  the  Federal  govern¬ 
ment,  while  Jefferson,  the  secretary  of  state,  desired  to  prac¬ 
tically  restrict  its  action  to  foreign  affairs.  The  advocates  of 
a  central  National  authority  had  begun  to  receive  the  name 
of  Federalists,  and  to  act  pretty  constantly  together,  when  an 
event  happened  which,  while  it  tightened  their  union,  finally 
consolidated  their  opponents  also  into  a  party. 

This  was  the  creation  of  the  French  Republic  and  its 

447 


448  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


declaration  of  war  against  England.  The  Federalists,  who 
were  shocked  by  the  excesses  of  the  Terror  of  1793,  coun¬ 
selled  neutrality,  and  were  more  than  ever  inclined  to  value 
the  principle  of  authority,  and  to  allow  the  Federal  power  a 
wide  sphere  of  action.  The  party  of  Jefferson,  who  had  now 
retired  from  the  administration,  were  pervaded  by  sympathy 
with  French  ideas,  were  hostile  to  England,  whose  attitude 
continued  to  be  discourteous,  and  sought  to  restrict  the  inter¬ 
ference  of  the  central  government  with  the  States,  and  to 
allow  the  fullest  play  to  the  sentiment  of  State  independence, 
of  local  independence,  of  personal  independence.  This  party 
took  the  name  of  Republicans  or  Democratic  Republicans,  and 
they  are  the  predecessors  of  the  present  Democrats.  Both 
parties  were,  of  course,  attached  to  Republican  government  — 
that  is  to  say,  were  alike  hostile  to  a  monarchy.  But  the 
Jeffersonians  had  more  faith  in  the  masses  and  in  leaving 
things  alone,  together  with  less  respect  for  authority,  so  that 
in  a  sort  of  general  way  one  may  say  that  while  one  party 
claimed  to  be  the  apostles  of  Liberty,  the  other  represented 
the  principle  of  Order. 

These  tendencies  found  occasion  for  combating  one  another, 
not  only  in  foreign  policy  and  in  current  legislation,  but  also 
in  the  construction  and  application  of  the  Constitution.  Like 
all  documents,  and  especially  documents  which  have  been 
formed  by  a  series  of  compromises  between  opposite  views, 
it  was  and  is  susceptible  of  various  interpretations,  which  the 
acuteness  of  both  sets  of  partisans  was  busy  in  discovering 
and  expounding.  While  the  piercing  intellect  of  Hamilton 
developed  all  those  of  its  provisions  which  invested  the  Fed¬ 
eral  Congress  and  President  with  far-reaching  powers,  and 
sought  to  build  up  a  system  of  institutions  which  should  give 
to  these  provisions  their  full  effect,  Jefferson  and  his  coadju¬ 
tors  appealed  to  the  sentiment  of  individualism  strong  in  the 
masses  of  the  people,  and,  without  venturing  to  propose  altera¬ 
tions  in  the  text  of  the  Constitution,  protested  against  all  exten¬ 
sions  of  its  letter,  and  against  all  the  assumptions  of  Federal 
authority  which  such  extensions  could  be  made  to  justify.  Thus 
two  parties  grew  up  with  tenets,  leaders,  impulses,  sympathies, 
and  hatreds. 

At  first  the  Federalists  had  the  best  of  it,  for  the  reaction 


ciiap.  lii  POLITICAL  PARTIES  AND  THEIR  HISTORY 


449 


against  the  weakness  of  the  old  Confederation  which  the  Union 
had  superseded  disposed  sensible  men  to  tolerate  a  strong  cen¬ 
tral  power.  The  President,  though  not  a  member  of  either 
party,  was,  by  force  of  circumstances,  as  well  as  owing  to  the 
influence  of  Hamilton,  practically  with  the  Federalists.  But 
during  the  presidency  of  J ohn  Adams,  who  succeeded  Wash¬ 
ington,  they  committed  grave  errors.  When  the  presidential 
election  of  1800  arrived,  it  was  seen  that  the  logical  and  ora¬ 
torical  force  of  Hamilton’s  appeals  to  the  reason  of  the  nation 
told  far  less  than  the  skill  and  energy  with  which  Jefferson 
played  on  their  feelings  and  prejudices.  The  Republicans 
triumphed  m  the  choice  of  their  chief,  who  retained  power  for 
eight  years,  to  be  peaceably  succeeded  by  his  friend  Madison 
for  another  eight  years,  and  his  disciple  Monroe  for  eight  years 
more.  Their  long-continued  tenure  of  office  was  due  not  so 
much  to  their  own  merits,  for  neither  Jefferson  nor  Madison 
conducted  foreign  affairs  with  success,  as  to  the  collapse  of 
their  antagonists.  The  Federalists  never  recovered  from  the 
blow  given  in  the  election  of  1800.  They  lost  Hamilton  by 
death  m  1804.  Ho  other  leader  of  equal  gifts  appeared,  and 
the  party,  whmh  had  shown  little  judgment  in  the  critical  years 
1810-14,  finally  disappears  from  sight  after  the  second  peace 
with  England  in  1815. 

This  period  (1788-1824)  may  be  said  to  constitute  the  first 
act  m  the  drama  of  American  party  history.  The  people,  accus¬ 
tomed  hitherto  to  care  only  for  their  several  commonwealths, 
learn  to  value  and  to  work  their  new  Rational  institutions  They 
become  familiar  with  the  Constitution  itself,  as  partners  get  to 
know,  when  disputes  arise  among  them,  the  provisions  of  the 
partnership  deed  under  which  their  business  has  to  be  carried 
on.  It  is  found  that  the  existence  of  a  central  Federal  power 
does  not  annihilate  the  States,  so  the  apprehensions  on  that 
score  are  allayed.  It  it  also  discovered  that  there  are  unfore¬ 
seen  directions,  such  for  instance  as  questions  relating  to  bank- 

j  currency  and  internal  communications,  through  which 
the  Federal  power  can  strengthen  its  hold  on  the  nation.  Dif¬ 
ferences  of  view  and  feeling  give  rise  to  parties,  yet  parties  are 
tormed  by  no  means  solely  on  the  basis  of  general  principles, 
3ut  owe  much  to  the  influence  of  prominent  personalities,  of 
transient  issues,  of  local  interests  or  prejudices. 


450  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  m 


The  small  farmers  and  the  Southern  men  generally  follow  the 
Republican  standard  borne  aloft  by  the  great  State  of  Virginia, 
while  the  strength  of  the  Federalists  lies  in  New  England  and 
the  Middle  States,  led  sometimes  by  Massachusetts,  sometimes 
by  Pennsylvania.  The  commercial  interest  was  with  the  Fed¬ 
eralists,  and  the  staid  solid  Puritanism  of  all  classes,  headed  by 
the  clergy.  Some  one  indeed  has  described  the  struggle  from 
1796  to  1808  as  one  between  Jefferson,  who  was  an  avowed  free¬ 
thinker,  and  the  New  England  ministers;  and  no  doubt  the 
ministers  of  religion  did  in  the  Puritan  States  exert  a  political 
influence  approaching  that  of  the  Presbyterian  clergy  in  Scot¬ 
land  during  the  seventeenth  century. 

Jefferson’s  importance  lies  in  the  fact  that  he  became  the  rep¬ 
resentative  not  merely  of  democracy,  but  of  local  democracy,  of 
the  notion  that  government  is  hardly  wanted  at  all,  that  the 
people  are  sure  to  go  right  if  they  are  left  alone,  that  he  who 
resists  authority  is  prima  fade  justified  in  doing  so,  because 
authority  is  prima  fade  tyrannical,  that  a  country  where  each 
local  body  in  its  own  local  area  looks  after  the  objects  of  com¬ 
mon  concern,  raising  and  administering  any  such  funds  as  are 
needed,  and  is  interfered  with  as  little  as  possible  by  any  exter¬ 
nal  power,  comes  nearest  to  the  ideal  of  a  truly  free  people. 

As  New  England  was,  by  its  system  of  local  self-government 
through  the  town  meeting,  as  well  as  by  the  absence  of  slavery, 
in  some  respects  the  most  democratic  part  of  the  United  States, 
it  may  seem  surprising  that  it  should  have  been  a  stronghold 
of  the  Federalists.  The  reason  is  to  be  found  partly  m  its 
Puritanism,  which  revolted  at  the .  deism  or  atheism  of  the 
French  revolutionists,  partly  in  the  interests  of  its  shipowners 
and  merchants,  who  desired  above  all  things  a  central  govern¬ 
ment  which,  while  strong  enough  to  make  and  carry  out  treaties 
with  England  and  so  secure  the  development  of  American  com¬ 
merce,  should  be  able  also  to  reform  the  currency  of  the  country 
and  institute  a  National  banking  system.  Industrial  as  well  as 
territorial  interests  were  already  beginning  to  influence  politics. 

That  the  mercantile  and  manufacturing  classes,  with  all  the 
advantages  given  them  by  their  wealth,  their  intelligence,  and 
their  habits  of  co-operation,  should  have  been  vanquished  by  the 
agricultural  masses,  may  be  ascribed  partly  to  the  fact  that  th( 
democratic  impulse  of  the  War  of  Independence  was  strong 


chap,  lii  POLITICAL  PARTIES  AND  THEIR  HISTORY 


451 


among  the  citizens  who  had  grown  to  manhood  between  1780 
and  1800,  partly  to  the  tactical  errors  of  the  Federalist  leaders, 
but  largely  also  to  the  skill  which  J efferson  showed  in  organiz¬ 
ing  the  hitherto  undisciplined  battalions  of  Republican  voters. 
Thus  early  in  American  history  was  the  secret  revealed,  which 
Europe  is  only  now  discovering,  that  in  free  countries  with  an 
extended  suffrage,  numbers  without  organization  are  helpless 
and  with  it  omnipotent. 

Although  the  Federalists  were  in  general  the  advocates  of  a 
loose  and  liberal  construction  of  the  fundamental  instrument, 
because  such  a  construction  opened  a  wider  sphere  to  Federal 
power,  they  were  ready,  whenever  their  local  interests  stood  in 
the  way,  to  resist  Congress  and  the  executive,  alleging  that  the 
latter  were  overstepping  their  jurisdiction.  In  1814  several  of 
the  New  England  States,  where  the  opposition  to  the  war  then 
being  waged  with  England  was  strongest,  sent  delegates  to  a 
convention  at  Hartford,  which,  while  discussing  the  best  means 
for  putting  an  end  to  the  war  and  restricting  the  powers  of 
Congress  in  commercial  legislation,  was  suspected  of  meditat¬ 
ing  a  secession  of  the  trading  States  from  the  Union.  On  the 
other  hand,  the  Republicans  did  not  hesitate  to  stretch  to  their 
utmost,  when  they  were  themselves  in  power,  all  the  authority 
which  the  Constitution  could  be  construed  to  allow  to  the  exec¬ 
utive  and  the  Federal  government  generally. 

The  boldest  step  which  a  President  has  ever  taken,  the  pur¬ 
chase  from  Napoleon  of  the  vast  territories  of  France  west  of 
the  Mississippi  which  went  by  the  name  of  Louisiana,  was  taken 
by  elefferson  without  the  authority  of  Congress.  Congress  sub¬ 
sequently  gave  its  sanction.  But  J  efferson  and  many  of  his 
friends  held  that  under  the  Constitution  even  Congress  had 
not  the  power  to  acquire  new  territories  to  be  formed  into 
States.  They  were  therefore  in  the  dilemma  of  either  violat¬ 
ing  the  Constitution  or  losing  a  golden  opportunity  of  secur¬ 
ing  the  Republic  against  the  growth  on  its  western  frontier  of 
a  powerful  and  possibly  hostile  foreign  State.  Some  of  them 
tried  to  refute  their  former  arguments  against  a  lax  construc¬ 
tion  of  the  Constitution,  but  many  others  avowed  the  dangerous 
doctrine  that  if  Louisiana  could  be  brought  in  only  by  breaking 
down  the  walls  of  the  Constitution,  broken  they  must  be. 

The  disappearance  of  the  Federal  party  between  1815  and 


452  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


1820  left  the  Republicans  masters  of  the  field.  But  in  the 
United  States  if  old  parties  vanish  nature  quickly  produces 
new  ones.  Sectional  divisions  soon  arose  among  the  men  who 
joined  in  electing  Monroe  in  1820,  and  under  the  influence  of 
the  personal  hostility  of  Henry  Clay  and  Andrew  Jackson, 
two  great  parties  were  again  formed  (about  1830),  which  some 
few  years  later  absorbed  the  minor  groups.  One  of  these  two 
parties  carried  on,  under  the  name  of  Democrats,  the  dogmas 
and  traditions  of  the  Jeffersonian  Republicans.  It  was  the 
defender  of  States’  Rights  and  of  a  restrictive  construction  of 
the  Constitution ;  it  leant  mainly  on  the  South  and  the  farm¬ 
ing  classes  generally,  and  it  was  therefore  inclined  to  free 
trade.  The  other  section,  which  called  itself  at  first  the 
National  Republican,  ultimately  the  Whig  party,  represented 
many  of  the  views  of  the  former  Federalists,  such  as  their 
advocacy  of  a  tariff  for  the  protection  of  manufactures,  and 
of  the  expenditure  of  public  money  on  internal  improvements. 
It  was  willing  to  increase  the  army  and  navy,  and  like  the 
Federalists  found  its  chief,  though  by  no  means  its  sole  sup¬ 
port  in  the  commercial  and  manufacturing  parts  of  the  coun¬ 
try,  that  is  to  say,  in  New  England  and  the  Middle  States. 

Meantime  a  new  question  far  more  exciting,  far  more  men¬ 
acing,  had  arisen.  In  1819,  when  Missouri  applied  to  be 
admitted  into  the  Union  as  a  State,  a  sharp  contest  broke  out 
in  Congress  as  to  whether  slavery  should  be  permitted  within 
her  limits,  nearly  all  the  Northern  members  voting  against 
slavery,  nearly  all  the  Southern  members  for  it.  The  struggle 
might  have  threatened  the  stability  of  the  Union  but  for  the 
compromise  adopted  next  year,  which,  while  admitting  slavery 
in  Missouri,  forbade  it  for  the  future  north  of  lat.  36°  30'. 
The  danger  seemed  to  have  passed,  but  in  its  very  sudden¬ 
ness  there  had  been  something  terrible.  Jefferson,  then  over 
seventy,  said  that  it  startled  him  u  like  a  fire-bell  in  the 
night.” 

After  1840  things  grew  more  serious,  for  whereas  up  till 
that  time  new  States  had  been  admitted  substantially  in  pairs, 
a  slave  State  balancing  a  free  State,  it  began  to  be  clear  that 
this  must  shortly  cease,  since  the  remaining  territory  out  of 
which  new  States  would  be  formed  lay  north  of  the  line  36° 
30'.  As  every  State  held  two  seats  in  the  Senate,  the  then 


chap,  lii  POLITICAL  PARTIES  AND  THEIR  HISTORY 


453 


existing  balance  in  that  chamber  between  slave  States  and  free 
States  would  evidently  soon  be  overset  by  the  admission  of  a 
larger  number  of  the  latter.  The  apprehension  of  this  event, 
with  its  probable  result  of  legislation  unfriendly  to  slavery, 
stimulated  the  South  to  the  annexation  of  Texas,  and  made 
them  increasingly  sensitive  to  the  growth,  slow  as  that  growth 
was,  of  Abolitionist  opinions  at  the  North. 

The  question  of  the  extension  of  slavery  west  of  the  Mis¬ 
souri  river  had  become  by  1850  the  vital  and  absorbing  ques¬ 
tion  for  the  people  of  the  United  States,  and  as  in  that 
year  California,  having  organized  herself  without  slavery,  was 
knocking  at  the  doors  of  Congress  for  admission  as  a  State,  it 
had  become  an  urgent  question  which  evoked  the  hottest  pas¬ 
sions,  and  the  victors  in  which  would  be  victors  all  along  the 
line.  But  neither  of  the  two  great  parties  ventured  to  com¬ 
mit  itself  either  way.  The  Southern  Democrats  hesitated  to 
break  with  those  Democrats  of  the  Northern  States  who 
sought  to  restrict  slavery.  The  Whigs  of  the  North,  fearing 
to  alienate  their  Southern  allies  by  any  decided  action  against 
the  growing  pretensions  of  the  slave-holders,  temporized  and 
suggested  compromises  which  practically  served  the  cause  of 
slavery.  Anxious  to  save  at  all  hazards  the  Union  as  it  had 
hitherto  stood,  they  did  not  perceive  that  changes  of  circum¬ 
stances  and  feeling  were  making  this  effort  a  hopeless  one,  and 
that  in  trying  to  keep  their  party  together  they  were  losing 
hold  of  the  people,  and  alienating  from  themselves  the  men 
who  cared  for  principle  in  politics.  That  this  was  so  pres¬ 
ently  appeared. 

The  Democratic  party  had  by  1852  passed  almost  completely 
under  the  control  of  the  slave-holders,  and  was  adopting  the 
dogma  that  Congress  enjoyed  under  the  Constitution  no  power 
to  prohibit  slavery  in  the  Territories.  This  dogma  obviously 
overthrew  as  unconstitutional  the  Missouri  compromise  of 
1820.  The  Whig  leaders  discredited  themselves  by  Henry 
Clay’s  compromise  scheme  of  1850,  which,  while  admitting 
California  as  a  Free  State,  appeased  the  South  by  the  Fugitive 
Slave  Law.  They  received  a  crushing  defeat  at  the  presiden¬ 
tial  election  of  1852 ;  and  what  remained  of  their  party  finally 
broke  in  pieces  in  1854  over  the  bill  for  organizing  Kansas  as 
a  Territory,  in  which  the  question  of  slaves  or  no  slaves  should 


454  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


be  left  to  the  people,  a  bill  which  of  course  repealed  the  Mis- 
souri  compromise. 

Singularly  enough,  the  two  great  orators  of  the  party,  Henry 
Clay  and  Daniel  Webster,  both  died  in  1852,  wearied  with 
strife  and  disappointed  in  their  ambition  of  reaching  the 
presidential  chair.  Together  with  Calhoun,  who  passed  away 
two  years  earlier,  they  are  the  ornaments  of  this  generation, 
not  indeed  rising  to  the  stature  of  Washington  or  Hamilton, 
but  more  remarkable  than  any,  save  one,  among  the  statesmen 
who  have  followed  them.  With  them  ends  the  second  period 
in  the  annals  of  American  parties,  which,  extending  from 
about  1820  to  1856,  includes  the  rise  and  fall  of  the  Whig 
party.  Most  of  the  controversies  which  filled  it  have  become 
matter  for  history  only.  But  three  large  results,  besides  the 
general  democratization  of  politics,  stand  out.  One  is  the 
detachment  of  the  United  States  from  the  affairs  of  the  Old 
World.  Another  is  the  growth  of  a  sense  of  National  life, 
especially  in  the  Northern  and  Western  States,  along  with  the 
growth  at  the  same  time  of  a  secessionist  spirit  among  the 
slave-holders.  And  the  third  is  the  development  of  the  com¬ 
plex  machinery  of  party  organization,  with  the  adoption  of 
the  principle  on  which  that  machinery  so  largely  rests,  that 
public  office  is  to  be  enjoyed  only  by  the  adherents  of  the 
President  for  the  time  being. 

The  Whig  party  having  begun  to  fall  to  pieces,  the  Demo¬ 
crats  seemed  to  be  for  the  moment,  as  they  had  been  once 
before,  left  in  possession  of  the  field.  But  this  time  a  new 
antagonist  was  swift  to  appear.  The  growing  boldness  of  the 
slave-owners  had  already  alarmed  the  Northern  people,  when 
they  were  startled  by  a  decision  of  the  Supreme  Court,  pro¬ 
nounced  early  in  1857  in  the  case  of  the  slave  Dred  Scott, 
which  laid  down  the  doctrine  that  Congress  had  no  power  to 
forbid  slavery  anywhere,  and  that  a  slave-holdei  might  cany 
his  slaves  with  him  whither  he  pleased,  seeing  that  they  were 
mere  objects  of  property,  whose  possession  the  Constitution 
guaranteed.  This  completed  the  formation  out  of  the  wrecks 
of  the  Whigs  and  Know-nothings  or  “  American  party,”  to¬ 
gether  with  the  Tree  Soilers  and  “ Liberty”  party,  of  anew 
party,  which  in  1856  had  run  Fremont  as  its  presidential  can¬ 
didate  and  taken  the  name  of  Bepublican. 


CHAP.  LI  I 


POLITICAL  PARTIES  AND  THEIR  HISTORY  455 


At  the  same  time  an  apple  of  discord  was  thrown  among 
the  Democrats.  In  1860  the  latter  could  not  agree  upon  a 
candidate  for  President.  The  Southern  wing  pledged  them¬ 
selves  to  one  man,  the  Northern  wing  to  another;  a  body  of 
hesitating  and  semi-detached  politicians  put  forward  a  third. 
Thus  the  Republicans  through  the  division  of  their  opponents 
triumphed  in  the  election  of  Abraham  Lincoln,  presently  fol¬ 
lowed  by  the  secession  of  eleven  slave  States.  The  Republican 
party,  which  had  started  by  proclaiming  the  right  of  Congress  to 
restrict  slavery  and  had  subsequently  denounced  the  Dred  Scott 
decision,  was  of  course  throughout  the  Civil  War  the  defender 
of  the  Union  and  the  assertor  of  Federal  authority,  stretched, 
as  was  unavoidable,  to  lengths  previously  unheard  of. 

When  the  war  was  over,  there  came  the  difficult  task  of 
reconstructing  the  now  reconquered  slave  States,  and  of  secur¬ 
ing  the  position  in  them  of  the  lately  liberated  Negroes.  The 
outrages  perpetrated  on  the  latter,  and  on  white  settlers  in 
some  parts  of  the  South,  required  further  exertion  of  Federal 
authority,  and  made  the  question  of  the  limit  of  that  authority 
still  a  practical  one,  for  the  old  Democratic  party,  almost 
silenced  during  the  war,  had  now  reappeared  in  full  force  as 
the  advocate  of  State  rights,  and  the  watchful  critic  of  any 
undue  stretches  of  Federal  authority.  It  was  deemed  neces¬ 
sary  to  negative  the  Dred  Scott  decision  and  set  at  rest  all 
questions  relating  to  slavery  and  to  the  political  equality  of  the 
races  by  the  adoption  of  three  important  amendments  to  the  Con¬ 
stitution.  The  troubles  of  the  South  by  degrees  settled  down 
as  the  whites  regained  possession  of  the  State  governments  and 
the  Northern  troops  began  to  be  withdrawn.  In  the  presiden¬ 
tial  election  of  1876  the  war  question  and  Negro  question  had 
become  dead  issues,  for  it  was  plain  that  a  large  and  increas¬ 
ing  number  of  the  voters  were  no  longer,  despite  the  appeals  of 
the  Republican  leaders,  seriously  concerned  about  them. 

This  election  marks  the  close  of  the  third  period,  which 
embraces  the  rise  and  overwhelming  predominance  of  the 
Republican  party.  Formed  to  resist  the  extension  of  slavery, 
led  on  to  destroy  it,  compelled  by  circumstances  to  expand 
the  central  authority  in  a  way  unthought  of  before,  that  party 
had  now  worked  out  its  programme  and  fulfilled  its  original 
mission.  The  old  aims  were  accomplished,  but  new  ones  had 


456  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  in 


not  yet  been  substituted,  for  though  new  problems  had  ap¬ 
peared,  the  party  was  not  prepared  with  solutions.  Similarly 
the  Democratic  party  had  discharged  its  mission  in  defending 
the  rights  of  the  reconstructed  States,  and  criticising  excesses 
of  executive  power  ;  similarly  it  too  had  refused  to  grapple 
either  with  the  fresh  questions  which  had  begun  to  arise  since 
the  war,  or  with  those  older  questions  which  had  now  re¬ 
appeared  above  the  subsiding  flood  of  war  days.  The  old 
parties  still  stood  as  organizations,  and  still  claimed  to  be  the 
exponents  of  principles.  Their  respective  principles  had, 
however,  little  direct  application  to  the  questions  which  con¬ 
fronted  and  divided  the  nation. 

Two  permanent  oppositions  may,  I  think,  be  discerned  run¬ 
ning  through  the  history  of  the  parties,  sometimes  openly 
recognized,  sometimes  concealed  by  the  urgency  of  a  transi¬ 
tory  question.  One  of  these  is  the  opposition  between  a  cen¬ 
tralized  or  unitary  and  a  federalized  government.  The  former 
has  been  the  watchword  of  the  Democratic  party.  The  latter 
was  seldom  distinctly  avowed,  but  was  generally  in  fact  repre¬ 
sented  by  the  Federalists  of  the  first  period,  the  Whigs  of  the 
second,  the  Republicans  of  the  third.  The  other  opposition, 
though  it  goes  deeper  and  is  more  pervasive,  has  been  less 
clearly  marked  in  America,  and  less  consciously  admitted 
by  the  Americans  themselves.  It  is  the  opposition  between 
the  tendency  which  makes  some  men  prize  the  freedom  of  the 
individual  as  the  first  of  social  goods,  and  that  which  disposes 
others  to  insist  on  checking  and  regulating  his  impulses.  The 
opposition  of  these  two  tendencies,  the  love  of  liberty  and  the 
love  of  order,  is  permanent  and  necessary,  because  it  springs 
from  differences  in  the  intellect  and  feelings  of  men  which  one 
finds  in  all  countries  and  at  all  epochs. 

Each  of  these  tendencies  found  among  the  fathers  of  the 
American  Republic  a  brilliant  and  characteristic  representa¬ 
tive.  Hamilton,  who  had  a  low  opinion  of  mankind,  but  a 
gift  and  a  passion  for  large  constructive  statesmanship,  went 
so  far  in  his  advocacy  of  a  strong  government  as  to  be  sus¬ 
pected  of  wishing  to  establish  a  monarchy  after  the  British 
pattern.  Jefferson  carried  further  than  any  other  person  set 
in  an  equally  responsible  place  has  ever  done,  his  faith  that 
government  is  either  needless  or  an  evil,  and  that  with  enough 
liberty,  everything  will  go  well. 


CHAPTER  LIII 


NOMINATING  CONVENTIONS 

In  every  American  election  there  are  two  acts  of  choice,  two 
periods  of  contest.  The  first  is  the  selection  of  the  candidate 
from  within  the  party  by  the  party ;  the  other  is  the  struggle 
between  the  parties  for  the  place.  Frequently  the  former  of 
these  is  more  important,  more  keenly  fought  over,  than  the 
latter,  for  there  are  many  districts  in  which  the  predominance 
of  one  party  is  so  marked  that  its  candidate  is  sure  of  suc¬ 
cess,  and  therefore  the  choice  of  a  candidate  is  virtually  the 
choice  of  the  officer  or  representative. 

The  process  for  choosing  and  nominating  a  candidate  is  sim¬ 
ilar  in  every  State  of  the  Union,  and  through  all  elections  to 
office,  from  the  lowest  to  the  highest,  from  that  of  common 
councilman  for  a  city  ward  up  to  that  of  President  of  the 
United  States.  But,  of  course,  the  higher  the  office,  and  the 
larger  the  area  over  which  the  election  extends,  the  greater  are 
the  efforts  made  to  secure  the  nomination,  and  the  hotter  the 
passion  it  excites.  The  choice  of  a  candidate  for  the  presi¬ 
dency  is  so  striking  and  peculiar  a  feature  of  the  American 
system  that  it  deserves  a  full  examination. 

Like  most  political  institutions,  the  system  of  nominating 
the  President  by  a  popular  convention  is  the  result  of  a  long 
process  of  evolution. 

In  the  first  two  elections,  those  of  1789  and  1792,  there  was 
no  need  for  nominations  of  candidates,  because  the  whole  nation 
wished  and  expected  George  Washington  to  be  elected.  So  too, 
when  in  1796  Washington  declared  his  retirement,  the  dominant 
feeling  of  one  party  was  for  John  Adams,  that  of  the  other  for 
Thomas  Jefferson,  and  nobody  thought  of  setting  out  formally 
what  was  so  generally  understood. 

In  1800,  however,  the  year  of  the  fourth  election,  there  was 
somewhat  less  unanimity.  The  prevailing  sentiment  of  the 

457 


458  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


Federalists  went  for  re-electing  Adams,  and  the  small  conclave 
of  Federalist  members  of  Congress  which  met  to  promote  his 
interest  was  deemed  scarcely  necessary.  The  (Democratic) 
Republicans,  however,  while  united  in  desiring  to  make  J effer- 
son  President,  hesitated  as  to  their  candidate  for  the  vice-presi¬ 
dency,  and  a  meeting  of  Republican  members  of  Congress  was 
therefore  called  to  recommend  Aaron  Burr  for  this  office.  It 
was  a  small  meeting  and  a  secret  meeting,  but  it  is  memorable 
not  only  as  the  first  congressional  caucus,  but  as  the  first  at¬ 
tempt  to  arrange  in  any  way  a  party  nomination. 

In  1804  a  more  regular  gathering  for  the  same  purpose  was 
held.  All  the  Republican  members  of  Congress  were  summoned 
to  meet;  and  they  unanimously  nominated  Jefferson  for  Presi¬ 
dent  and  George  Clinton  of  New  York  for  Vice-President.  So 
in  1808  nearly  all  the  Republican  majority  in  both  Houses  of 
Congress  met  and  formally  nominated  Madison  and  Clinton. 
The  same  course  was  followed  in  1812,  and  again  in  1816. 
But  the  objections  which  were  from  the  first  made  to  this 
action  of  the  party  in  Congress,  as  being  an  arrogant  usurpa¬ 
tion  of  the  rights  of  the  people,  —  for  no  one  dreamed  of  leav¬ 
ing  freedom  to  the  presidential  electors,  —  gained  rather  than 
lost  strength  on  each  successive  occasion,  so  much  so  that  in 
1820  the  few  who  met  made  no  nomination,1  and  in  1824,  out 
of  the  Democratic  members  of  both  Houses  of  Congress  sum¬ 
moned  to  the  “  nominating  caucus,”  as  it  was  called,  only 
sixty-six  attended,  many  of  the  remainder  having  announced 
their  disapproval  of  the  practice.2  The  nominee  of  this  caucus 
came  in  only  third  at  the  polls,  and  this  failure  gave  the  coup 
de  grdce  to  a  plan  which  the  levelling  tendencies  of  the  time,  and 
the  disposition  to  refer  everything  to  the  arbitrament  of  the 
masses,  would  in  any  case  have  soon  extinguished.  No  con¬ 
gressional  caucus  was  ever  again  held  for  the  choice  of  candi¬ 
dates. 

A  new  method,  however,  was  not  at  once  discovered.  In  1828 
Jackson  was  recommended  as  candidate  by  the  legislature  of 
Tennessee  and  by  a  number  of  popular  gatherings  in  different 


1  It  was  not  absolutely  necessary  to  have  a  nomination,  because  there  was 
a  general  feeling  in  favour  of  re-electing  Monroe. 

2  The  whole  number  was  then  261,  nearly  all  Democratic  Republicans,  for 
the  Federalist  party  had  been  for  some  time  virtually  extinct. 


CHAP.  LIII 


NOMINATING  CONVENTIONS 


459 


places,  while  his  opponents  accepted,  without  any  formal  nomi¬ 
nation,  the  then  President,  J.  Q.  Adams,  as  their  candidate.  In 
1831,  however,  assemblies  were  held  by  two  great  parties  (the 
Anti-Masons  and  the  National  Republicans,  afterwards  called 
Whigs)  consisting  of  delegates  from  most  of  the  States ;  and 
each  of  these  conventions  nominated  its  candidates  for  the 
presidency  and  vice-presidency.  A  third  “National  Conven¬ 
tion”  of  young  men,  which  met  in  1832,  adopted  the  Whig 
nominations,  and  added  to  them  a  series  of  ten  resolutions,  con¬ 
stituting  the  first  political  platform  ever  put  forth  by  a  nominat¬ 
ing  body.  The  friends  of  Jackson  followed  suit  by  holding 
their  National  convention,  which  nominated  him  and  Van  Buren. 
Por  the  election  of  1836,  a  similar  convention  was  held  by  the 
Jacksonian  Democrats,  none  by  their  opponents.  But  for  that 
of  1840,  National  conventions  of  delegates  from  nearly  all  the 
States  were  held  by  both  Democrats  and  Whigs,  as  well  as  by 
the  (then  young  and  very  small)  party  of  the  Abolitionists. 
This  precedent  has  been  followed  in  every  subsequent  contest, 
so  that  the  National  nominating  conventions  of  the  great  parties 
are  now  as  much  a  part  of  the  regular  machinery  of  politics  as 
are  the  rules  which  the  Constitution  itself  prescribes  for  the 
election.  The  establishment  of  the  system  coincides  with  and 
represents  the  complete  social  democratization  of  politics  in 
Jackson’s  time.  It  suits  both  the  professional  politicians,  for 
whom  it  finds  occupation  and  whose  power  it  secures,  and  the 
ordinary  citizen  who,  not  having  leisure  to  attend  to  politics, 
likes  to  think  that  his  right  of  selecting  candidates  is  recognized 
by  committing  the  selection  to  delegates  whom  he  is  entitled 
to  vote  for.  But  the  system  was  soon  seen  to  be  liable  to  fall 
under  the  control  of  selfish  intriguers,  and  therefore  prejudicial 
to  the  chances  of  able  and  independent  men.  As  early  as 
1844  Calhoun  refused  to  allow  his  name  to  be  submitted  to  a 
nominating  convention,  observing  that  he  would  never  have 
joined  in  breaking  down  the  old  congressional  caucus  had 
he  foreseen  that  its  successor  would  prove  so  much  more 
pernicious. 

Thus  from  1789  till  1800  there  were  no  formal  nominations ; 
from  1800  till  1824,  nominations  were  made  by  congressional 
caucuses ;  from  1824  till  1840,  nominations  irregularly  made  by 
State  legislatures  and  popular  meetings  were  gradually  ripening 


460  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


towards  the  method  of  a  special  gathering  of  delegates  from 
the  whole  country.  This  last  plan  has  held  its  ground  from 
1840  till  the  present  day,  and  is  so  exactly  conformable  to  the 
political  habits  of  the  people  that  it  is  not  likely  soon  to 
disappear. 

Its  perfection,  however,  was  not  reached  at  once.  The  early 
conventions  were  to  a  large  extent  mass  meetings.  The  later 
and  present  ones  are  regularly  constituted  representative  bodies, 
composed  exclusively  of  delegates,  each  of  whom  has  been  duly 
elected  at  a  party  meeting  in  his  own  State,  and  brings  with 
him  his  credentials. 

The  Constitution  provides  that  each  State  shall  choose  as 
many  presidential  electors  as  it  has  persons  representing  it  in 
Congress,  i.e.  two  electors  to  correspond  to  the  two  senators 
from  each  State,  and  as  many  more  as  the  State  sends  members 
to  the  House  of  Representatives. 

Now  in  the  nominating  convention  each  State  is  allowed 
twice  as  many  delegates  as  it  has  electoral  votes.  The  dele¬ 
gates  are  chosen  by  local  conventions  in  their  several  States, 
viz.  two  for  each  congressional  district  by  the  party  conven¬ 
tion  of  that  district,  and  four  for  the  whole  State  (called 
delegate s-at-large)  by  the  State  convention.  As  each  con¬ 
vention  is  composed  of  delegates  from  primaries,  it  is  the 
composition  of  the  primaries  which  determines  that  of  the 
local  conventions,  and  the  composition  of  the  local  conven¬ 
tions  which  determines  that  of  the  National.  To  every  dele¬ 
gate  there  is  added  a  person  called  his  “  alternate,”  chosen  by 
the  local  convention  at  the  same  time,  and  empowered  to  re¬ 
place  him  in  case  he  cannot  be  present  in  the  National  con¬ 
vention.  If  the  delegate  is  present  to  vote,  the  alternate  is 
silent ;  if  from  any  cause  the  delegate  is  absent,  the  alternate 
steps  into  his  shoes. 

Each  “  State  delegation  ”  has  its  chairman,  and  is  expected 
to  keep  together  during  the  convention.  It  usually  travels 
together  to  the  place  of  meeting;  takes  rooms  in  the  same 
hotel;  has  a  recognized  headquarters  there;  sits  in  a  par¬ 
ticular  place  allotted  to  it  in  the  convention  hall;  holds  meet¬ 
ings  of  its  members  during  the  progress  of  the  convention  to 
decide  on  the  course  which  it  shall  from  time  to  time  take. 
These  meetings,  if  the  State  be  a  large  and  doubtful  one, 


CIIAP.  LIII 


NOMINATING  CONVENTIONS 


4G1 


excite  great  interest,  and  the  sharp-eared  reporter  prowls 
round  them,  eager  to  learn  how  the  votes  will  go.  Each  State 
delegation  votes  by  its  chairman,  who  announces  how  his  dele¬ 
gates  vote;  but  if  his  report  is  challenged,  the  roll  of  delegates 
is  called,  and  they  vote  individually.  Whether  the  votes  of 
a  State  delegation  shall  be  given  solid  for  the  aspirant  whom 
the  majority  of  the  delegation  favours,  or  by  the  delegates 
individually  according  to  their  preferences,  is  a  point  which 
has  excited  bitter  controversy.  The  present  practice  of  the 
Republican  party  (so  settled  in  1876  and  again  in  1880)  allows 
the  delegates  to  vote  individually,  even  when  they  have  been 
instructed  by  a  State  convention  to  cast  a  solid  vote.  The 
Democratic  party,  on  the  other  hand,  sustains  any  such  in¬ 
struction  given  to  the  delegation,  and  records  the  vote  of  all 
the  State  delegates  for  the  aspirant  whom  the  majority  among 
them  approve.1  This  is  the  so-called  Unit  Rule.  If,  how¬ 
ever,  the  State  convention  has  not  imposed  the  unit  rule,  the 
delegates  vote  individually. 

For  the  sake  of  keeping  up  party  life  in  the  Territories  and 
in  the  Federal  District  of  Columbia,  delegates  from  them 
(and  now  even  from  the  Indian  Territory  and  Alaska)  are 
admitted  to  the  National  convention,  although  the  Territories 
and  District  have  no  votes  in  a  presidential  election.  Delega¬ 
tions  of  States  which  are  known  to  be  in  the  hands  of  the 
opposite  party,  and  whose  preference  of  one  aspirant  to  another 
will  not  really  tell  upon  the  result  of  the  presidential  election, 
are  admitted  to  vote  equally  with  the  delegations  of  the  States 
sure  to  go  for  the  party  which  holds  the  convention.  This 
arrangement  is  justified  on  the  ground  that  it  sustains  the 
interest  and  energy  of  the  party  in  States  where  it  is  in  a 
minority.  But  it  permits  the  choice  to  be  determined  by  dis¬ 
tricts  whose  action  will  in  no  wise  affect  the  election  itself, 
and  the  delegates  from  these  districts  are  apt  to  belong  to  a 
lower  class  of  politicians,  and  to  be  swayed  by  more  motives 
than  those  who  come  from  States  where  the  party  holds  a 
majority. 

So  much  for  the  composition  of  the  National  convention;  we 
may  now  go  on  to  describe  its  proceedings. 

1  An  attempt  was  made  at  the  Democratic  Convention  in  Chicago  in  July 
1884  to  overset  this  rule,  but  the  majority  reaffirmed  it. 


462  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


It  is  held  in  the  summer  immediately  preceding  a  presiden¬ 
tial  election,  usually  in  June  or  July,  the  election  falling  in 
November.  A  large  city  is  always  chosen,  in  oidei  to  obtain 
adequate  hotel  accommodation  and  easy  railroad  access. 

Business  begins  by  the  “  calling  of  the  convention  to  order  ” 
by  the  chairman  of  the  National  party  committee.  Then  a 
temporary  chairman  is  nominated,  and,  if  opposed,  voted  on *, 
the  vote  sometimes  giving  an  indication  of  the  respective 
strength  of  the  factions  present.  Then  the  secretaries  and 
the  clerks  are  appointed,  and  the  rules  which  are  to  govern 
the  business  are  adopted.  After  this  the  committees,  includ¬ 
ing  those  on  credentials  and  resolutions,  are  nominated,  and  the 
convention  adjourns  till  their  report  can  be  presented. 

The  next  sitting  usually  opens,  after  the  customary  prayer, 
with  the  appointment  of  the  permanent  chairman,  who  inaugu¬ 
rates  the  proceedings  with  a  speech.  Then  the  report  of  the 
committee  on  resolutions  (if  completed)  is  presented.  It  con¬ 
tains  what  is  called  the  platform,  a  long  series  of  resolutions 
embodying  the  principles  and  programme  of  the  party,  which 
has  usually  been  so  drawn  as  to  conciliate  every  section,  and 
avoid  or  treat  with  prudent  ambiguity  those  questions  on  which 
opinion  within  the  party  is  divided.  Any  delegate  who  objects 
to  a  resolution  can  move  to  strike  it  out  or  amend  it ;  but  it  is 
generally  “  sustained  ”  in  the  shape  it  has  received  from  the 
practised  hands  of  the  committee. 

Next  follows  the  nomination  of  aspirants  for  the  post  of 
party  candidate.  The  roll  of  States  is  called,  and  when  a  State 
is  reached  to  which  an  aspirant  intended  to  be  nominated 
belongs,  a  prominent  delegate  from  that  State  mounts  the  plat¬ 
form,  and  proposes  him  in  a  speech  extolling  his  merits,  and 
sometimes  indirectly  disparaging  the  other  aspirants.  Another 
delegate  seconds  the  nomination,  sometimes  a  third  follows ; 
and  then  the  roll-call  goes  on  till  all  the  States  have  been 
despatched,  and  all  the  aspirants  nominated.1  The  average 
number  of  nominations  is  seven  or  eight ;  it  rarely  exceeds 
twelve.2 


1  Nominations  may,  however,  be  made  at  any  subsequent  time. 

^  However,  in  the  Republican  Convention  of  1888,  fourteen  aspirants  u  ere 
nominated  at  the  outset,  six  of  whom  were  voted  for  on  the  last  ballot.  Votes 
were  given  at  one  or  other  of  the  ballotings  for  nineteen  aspirants  in  all. 


CHAP.  LIII 


NOMINATING  CONVENTIONS 


463 


Thus  the  final  stage  is  reached,  for  which  all  else  has  been 
but  preparation  —  that  of  balloting  between  the  aspirants. 
The  clerks  call  the  roll  of  States  from  Alabama  to  Wyoming, 
and  as  each  is  called  the  chairman  of  its  delegation  announces 
the  votes,  e.g.  six  for  A,  five  for  B,  three  for  C,  unless,  of  course, 
under  the  unit  rule,  the  whole  vote  is  cast  for  that  one  aspirant 
whom  the  majority  of  the  delegation  supports.  When  all  have 
voted,  the  totals  are  made  up  and  announced.  If  one  compet¬ 
itor  has  an  absolute  majority  of  the  whole  number  voting, 
according  to  the  Republican  rule,  —  a  majority  of  two-thirds  of 
the  number  voting,  according  to  the  Democratic  rule,  —  he  has 
been  duly  chosen,  and  nothing  remains  but  formally  to  make 
his  nomination  unanimous.  If,  however,  as  has  usually  hap¬ 
pened  of  late  years,  no  one  obtains  the  requisite  majority,  the 
roll  is  called  again,  in  order  that  individual  delegates  and  dele¬ 
gations  (if  the  unit  rule  prevails)  may  have  the  opportunity 
of  changing  their  votes  ;  and  the  process  is  repeated  until  some 
one  of  the  aspirants  put  forward  has  received  the  required 
number  of  votes.  Sometimes  many  roll-calls  take  place. 

When  a  candidate  for  the  presidency  has  been  thus  found, 
the  convention  proceeds  to  similarly  determine  its  candidate 
for  the  vice-presidency.  The  work  of  the  convention  is  then 
complete,  and  votes  of  thanks  to  the  chairman  and  other 
officials  conclude  the  proceedings.  The  two  nominees  are  now 
the  party  candidates,  entitled  to  the  support  of  the  party 
organizations  and  of  loyal  party  men  over  the  length  and 
breadth  of  the  Union. 

Entitled  to  that  support,  but  not  necessarily  sure  to  receive 
it,  for  party  discipline  cannot  compel  an  individual  voter  to 
cast  his  ballot  for  the  party  nominee.  All  that  the  convention 
can  do  is  to  recommend  the  candidate  to  the  party ;  all  that 
opinion  can  do  is  to  brand  as  a  kicker  or  bolter  whoever  breaks 
away ;  all  that  the  local  party  organization  can  do  is  to  strike 
the  bolter  off  its  lists.  But  how  stands  it,  the  reader  will  ask, 
with  the  delegates  who  have  been  present  in  the  convention, 
have  had  their  chance  of  carrying  their  man,  and  have  been 
beaten?  are  they  not  held  absolutely  bound  to  support  the 
candidate  chosen  ? 

This  is  a  question  which  has  excited  much  controversy.  The 
constant  impulse  and  effort  of  the  successful  majority  have 


464  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  in 


been  to  impose  such,  an  obligation  on  the  defeated  minority, 
and  the  chief  motive  which  has  prevented  it  from  being  invari¬ 
ably  formally  enforced  by  a  rule  or  resolution  of  the  convention 
has  been  the  fear  that  it  might  precipitate  hostilities,  might 
induce  men  of  independent  character,  or  strongly  opposed  to 
some  particular  aspirant,  to  refuse  to  attend  as  delegates,  or  to 
secede  early  in  the  proceedings  when  they  saw  that  a  person 
whom  they  disapproved  was  likely  to  win. 


CHAPTER  LIY 


THE  NOMINATING  CONVENTION  AT  WORK 

We  have  examined  the  composition  of  a  National  convention 
and  the  normal  order  of  business  in  it.  The  more  difficult  task 
remains  of  describing  the  actual  character  and  features  of  such 
an  assembly,  the  motives  which  sway  it,  the  temper  it  displays, 
the  passions  it  elicits,  the  wiles  by  which  its  members  are  lured 
or  driven  to  their  goal. 

A  National  convention  has  two  objects,  the  formal  declara¬ 
tion  of  the  principles,  views,  and  practical  proposals  of  the 
party,  and  the  choice  of  its  candidates  for  the  executive  head¬ 
ship  of  the  nation. 

Of  these  objects  the  former  has  in  critical  times,  such  as  the 
two  elections  preceding  the  Civil  War,  been  of  great  impor¬ 
tance.  In  the  Democratic  Convention  at  Charleston  in  1860,  a 
debate  on  resolutions  led  to  a  secession  and  to  the  break-up 
of  the  Democratic  party.  But  of  late  years  the  adoption  of 
platforms,  drafted  in  a  vague  and  pompous  style  by  the  com¬ 
mittee,  has  been  almost  a  matter  of  form. 

The  second  object  is  of  absorbing  interest  and  importance, 
because  the  presidency  is  the  great  prize  of  politics,  the  goal 
of  every  statesman’s  ambition.  The  President  can  by  his  veto 
stop  legislation  adverse  to  the  wishes  of  the  party  he  represents. 
The  President  is  the  supreme  dispenser  of  patronage. 

One  may  therefore  say  that  the  task  of  a  convention  is  to 
choose  the  party  candidate.  And  it  is  a  task  difficult  enough 
to  tax  all  the  resources  of  the  host  of  delegates  and  their 
leaders.  Who  is  the  man  fittest  to  be  adopted  as  candidate  ? 
Not  even  a  novice  in  politics  will  suppose  that  it  is  the  best 
man,  i.e.  the  wisest,  strongest,  and  most  upright.  Plainly,  it  is 
the  man  most  likely  to  win,  the  man  who,  to  use  the  technical 
term,  is  most  “  available.”  What  a  party  wants  is  not  a  good 
President  but  a  good  candidate.  The  party  managers  have 

2  H  465 


466  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


therefore  to  look  out  for  the  person  likely  to  gain  most  sup¬ 
port,  and  at  the  same  time  excite  least  opposition.  Their 
search  is  rendered  more  troublesome  by  the  fact  that  many 
of  them,  being  themselves  either  aspirants  or  the  close  allies 
of  aspirants,  are  not  disinterested,  and  are  distrusted  by  their 
fellow-searchers. 

Many  things  have  to  be  considered.  The  ability  of  a  states¬ 
man,  the  length  of  time  he  has  been  before  the  people,  his 
oratorical  gifts,  his  “  magnetism/’  his  family  connections,  his 
face  and  figure,  the  purity  of  his  private  life,  his  “  record  ”  as 
regards  integrity —all  these  are  matters  needing  to  be  weighed. 
Account  must  be  taken  of  the  personal  jealousies  and  hatreds 
which  a  man  has  excited.  To  have  incurred  the  enmity  of  a 
leading  statesman,  of  a  powerful  boss  or  ring,  even  of  an  in¬ 
fluential  newspaper,  is  serious.  Several  such  feuds  may  be 
fatal. 

Finally,  much  depends  on  the  State  whence  a  possible  candi¬ 
date  comes.  Local  feeling  leads  a  State  to  support  one  of  its 
own  citizens ;  it  increases  the  vote  of  his  own  party  in  that 
State,  and  reduces  the  vote  of  the  opposite  party.  Where  the 
State  is  decidedly  of  one  political  colour,  this  consideration  is 
weak.  It  is  therefore  from  a  doubtful  State  that  a  candidate 
may  with  most  advantage  be  selected ;  and  the  larger  the  doubt¬ 
ful  State,  the  better.  Hence  an  aspirant  who  belongs  to  a  great 
and  doubtful  State  is  prima  facie  the  most  eligible  candidate. 

Aspirants  hoping  to  obtain  the  party  nomination  from  a 
National  convention  have  sometimes  been  divided  into  three 
classes,  the  two  last  of  which,  as  will  appear  presently,  are  not 
mutually  exclusive,  viz.  — 

Favourites.  Dark  Horses.  Favourite  Sons. 

A  Favourite  is  always  a  politician  well  known  over  the 
Union,  and  drawing  support  from  all  or  most  of  its  sections. 
He  is  a  man  who  has  distinguished  himself  in  Congress,  or  in 
the  war,  or  in  the  politics  of  some  State  so  large  that  its  poli¬ 
tics  are  matter  of  knowledge  and  interest  to  the  whole  nation. 
He  is  usually  a  person  of  conspicuous  gifts,  whether  as  a  speaker, 
or  a  party  manager,  or  an  administrator..  The  drawback  to  him 
is  that  in  making  friends  he  has  also  made  enemies. 

A  Dark  Horse  is  a  person  not  very  widely  known  in  the 


CHAP.  li v  THE  NOMINATING  CONVENTION  AT  WORK 


467 


country  at  large,  but  known  rather  for  good  than  for  evil.  He 
has  probably  sat  in  Congress,  been  useful  on  committees,  and 
gained  some  credit  among  those  who  dealt  with  him  in  Wash¬ 
ington.  Or  he  has  approved  himself  a  safe  and  assiduous 
party  man  in  the  political  campaigns  of  his  own  and  neigh¬ 
bouring  States,  yet  without  reaching  National  prominence. 
Sometimes  he  is  a  really  able  man,  but  without  the  special 
talents  that  win  popularity.  Still,  speaking  generally,  the 
note  of  the  Dark  Horse  is  respectability  verging  on  colour¬ 
lessness  ;  and  he  is  therefore  a  good  sort  of  person  to  fall  back 
upon  when  able  but  dangerous  Favourites  have  proved  impos¬ 
sible.  That  native  mediocrity  rather  than  adverse  fortune  has 
prevented  him  from  winning  fame  is  proved  by  the  fact  that 
the  Dark  Horses  who  have  reached  the  White  House,  if  they 
have  seldom  turned  out  bad  Presidents,  have  even  more  seldom 
turned  out  distinguished  ones. 

A  Favourite  Son  is  a  politician  respected  or  admired  in  his 
own  State,  but  little  regarded  beyond  it.  He  may  not  be,  like 
the  Dark  Horse,  little  known  to  the  nation  at  large,  but  he  has 
not  fixed  its  eye  or  filled  its  ear.  He  is  usually  a  man  who  has 
sat  in  the  State  legislature ;  filled  with  credit  the  post  of  State 
governor ;  perhaps  gone  as  senator  or  representative  to  Wash- 
.  ington,  and  there  approved  himself  an  active  promoter  of  local 
interests.  Probably  he  possesses  the  qualities  which  gain  local 
popularity,  —  geniality,  activity,  sympathy  with  the  dominant 
sentiment  and  habits  of  his  State;  or,  while  endowed  with 
gifts  excellent  in  their  wajf,  he  has  lacked  the  audacity  and 
tenacity  which  push  a  man  to  the  front  through  a  jostling 
crowd.  More  rarely  he  is  a  demagogue  who  has  raised  him¬ 
self  by  flattering  the  masses  of  his  State  on  some  local  ques¬ 
tions,  or  a  skilful  handler  of  party  organizations  who  has  made 
local  bosses  and  spoilsmen  believe  that  their  interests  are  safe 
in  his  hands.  Anyhow,  his  personality  is  such  as  to  be  more 
effective  with  neighbours  than  with  the  nation,  as  a  lamp  whose 
glow  fills  the  side  chapel  of  a  cathedral  sinks  to  a  spark  of 
light  when  carried  into  the  nave. 

A  h  avourite  Son  may  be  also  a  Dark  Horse  ;  that  is  to  say, 
he  may  be  well  known  in  his  own  State,  but  so  little  known  out 
of  it  as  to  be  an  unlikely  candidate.  But  he  need  not  be.  The 
types  are  different,  for  as  there  are  Favourite  Sons  whom  the 


468  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


nation  knows  but  does  not  care  for,  so  there  are  Daik  Hoises 
whose  reputation,  such  as  it  is,  has  not  been  made  in  State 
affairs,  and  who  rely  but  very  little  on  State  favour. 

There  are  seldom  more  than  two,  never  more  then  three 
Favourites  in  the  running  at  the  same  convention.  Favourite 
Sons  are  more  numerous  — it  is  not  uncommon  to  have  four 
or  five,  or  even  six,  though  perhaps  not  all  these  are  actually 
started  in  the  race.  The  number  of  Dark  Horses  is  practically 
unlimited,  because  many  talked  of  beforehand  are  not  actu¬ 
ally  started,  while  others  not  considered  before  the  convention 

begins  are  discovered  as  it  goes  on. 

To  carry  the  analysis  farther,  it  may  be  observed  that  four 
sets  of  motives  are  at  work  upon  those  who  direct  or  vote  in  a 
convention,  acting  with  different  degrees  of  force  on  different 
persons.  There  is  the  wish  to  carry  a  particular  aspirant. 
There  is  the  wish  to  defeat  a  particular  aspirant,  a  wish  some¬ 
times  stronger  than  any  predilection.  There  is  the  desire  to 
get  something  for  one’s  self  out  of  the  struggle  e.g.  by  trad¬ 
ing  one’s  vote  or  influence  for  the  prospect  of  a  Federal  office. 
There  is  the  wish  to  find  the  man  who,  be  he  good  or  bad, 
friend  or  foe,  will  give  the  party  its  best  chance  of  victory. 
These  motives  cross  one  another,  get  mixed,  vary  in  relative 
strength  from  hour  to  hour  as  the  convention  goes  on  and  new 
possibilities  are  disclosed.  To  forecast  their  joint  effect  on  the 
minds  of  particular  persons  and  sections  of  a  party  needs  wide 
knowledge  and  eminent  acuteness.  To  play  upon  them  is  a 
matter  of  the  finest  skill. 

The  proceedings  of  a  nominating  convention  can  be  best 
understood  by  regarding  the  three  periods  into  which  they 
fall;  the  transactions  which  precede  the  opening  of  its  sittings; 
the  preliminary  business  of  passing  rules  and  resolutions  and' 
delivering  the  nominating  speeches;  and,  finally,  the  balloting. 

A  President  has  scarcely  been  elected  before  the  newspapers 
begin  to  discuss  his  probable  successor.  Little,  however,  is 
done  towards  the  ascertainment  of  candidates  till  about  a  year 
before  the  next  election,  when  the  factions  of  the  chief  aspir¬ 
ants  prepare  to  fall  into  line,  newspapers  take  up  their  parable 
in  favour  of  one  or  other,  and  bosses  begin  the  work  of  “  sub¬ 
soiling,”  i.e.  manipulating  primaries  and  local  conventions  so 
as  to  secure  the  choice  of  such  delegates  to  the  next  National 


CHAP.  Liv  THE  NOMINATING  CONVENTION  AT  WORK 


4G9 


convention  as  they  desire.  In  most  of  the  conventions  which 
appoint  delegates,  the  claims  of  the  several  aspirants  are  can¬ 
vassed,  and  the  delegates  chosen  are  usually  chosen  in  the 
interest  of  one  particular  aspirant.  The  newspapers,  with  their 
quick  sense  of  what  is  beginning  to  stir  men’s  thoughts,  redouble 
their  advocacy,  and  the  “boom  ”  of  one  or  two  of  the  probable 
favourites  is  thus  fairly  started.  Before  the  delegates  leave 
their  homes  for  the  National  convention,  most  of  them  have 
fixed  on  their  candidate,  many  having  indeed  received  positive 
instructions  as  to  how  their  vote  shall  be  cast.  All  appears  to  be 
spontaneous,  but  in  reality  both  the  choice  of  particular  men  as 
delegates,  and  the  instructions  given,  are  usually  the  result  of 
untiring  underground  work  among  local  politicians,  directed, 
or  even  personally  conducted,  by  two  or  three  skilful  agents 
and  emissaries  of  a  leading  aspirant,  or  of  the  knot  which  seeks 
to  run  him. 


Four  or  five  days  before  the  day  fixed  for  the  opening  of  the 
convention  the  delegations  begin  to  flock  into  the  city  where  it 
is  to  be  held.  Some  come  attended  by  a  host  of  friends  and  y 
cam^-followers,  and  are  received  at  the  depot  *  (railway  teri^U  ^ 
nusyby  the  politicians  of  the  city,  with  a  band  of  music  and 
an  admiring  crowd. 


Before  the  great  day  dawns  many  thousands  of  politicians, 
newspaper  men,  and  sight-seers  have  filled  to  overflowing  every 
hotel  in  the  city,  and  crowded  the  main  thoroughfares  so  that 
the  horse-cars  can  scarcely  penetrate  the  throng.  When  the 
chief  delegations  have  arrived,  the  work  begins  in  earnest. 
Not  only  each  large  delegation,  but  the  faction  of  each  leading 
aspirant  to  the  candidacy,  has  its  headquarters,  where  the 
managers  hold  perpetual  session,  reckoning  up  their  numbers, 
starting  rumours  meant  to  exaggerate  their  resources  and  dis¬ 
hearten  their  opponents,  organizing  raids  upon  the  less  experi¬ 
enced  delegates  as  they  arrive.  Some  fill  the  entrance  halls 
and  bars  of  the  hotels,  talk  to  the  busy  reporters,  extemporize 
meetings  with  tumultuous  cheering  for  their  favourite.  Mean¬ 
while,  the  more  skilful  leaders  begin  (as  it  is  expressed)  to 
“  plough  around  ”  among  the  delegations  of  the  newer  States, 
often  more  malleable,  because  they  come  from  regions  where 
the  strength  of  the  factions  supporting  the  various  aspirants  is 
less  accurately  known,  and  are  themselves  more  easily  “  capt- 


470  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


ured  ”  by  bold  assertions  or  seductive  promises.  Sometimes  an 
expert  intriguer  will  “  break  into  ”  one  of  these  wavering  delega¬ 
tions,  and  make  havoc  like  a  fox  in  a  hen-roost.  Missionaries 
are  sent  out  to  bring  over  individuals  ;  embassies  are  accredited 
from  one  delegation  to  another  to  endeavour  to  arrange  combina¬ 
tions  by  coaxing  the  weaker  party  to  drop  its  own  aspirant,  and 
add  its  votes  to  those  of  the  stronger  party.  All  is  conducted 
with  perfect  order  and  good-humour,  for  the  least  approach  to 
violence  would  recoil  upon  its  authors ;  and  the  only  breach  of 
courtesy  is  where  a  delegation  refuses  to  receive  the  ambassa¬ 
dors  of  an  organization  whose  evil  fame  has  made  it  odious. 

It  is  against  etiquette  for  the  aspirants  themselves  to  appear 
upon  the  scene,  whether  from  some  lingering  respect  for  the 
notion  that  a  man  must  not  ask  the  people  to  choose  him,  but 
accept  the  proffered  honour,  or  on  the  principle  that  the  attor¬ 
ney  who  conducts  his  own  case  has  a  fool  for  a  client.  Hut 
from  Washington,  if  he  is  an  official  or  a  senator,  or  perhaps 
from  his  own  home  in  some  distant  State,  each  aspirant  keeps 
up  hourly  communication  with  his  managers  in  the  convention 
city,  having  probably  a  private  wire  laid  on  for  the  purpose. 
Not  only  may  officials,  including  the  President  himself,  become 
aspirants,  but  Federal  office-holders  may  be,  and  very  largely 
are,  delegates. 

As  the  hour  when  the  convention  is  to  open  approaches,  each 
faction  strains  its  energy  to  the  utmost.  The  larger  delega¬ 
tions  hold  meetings  to  determine  their  course  in  the  event  of 
the  man  they  chiefly  favour  proving  “  unavailable.”  Confer¬ 
ences  take  place  between  different  delegations.  Lists  are  pub¬ 
lished  in  the  newspapers  of  the  strength  of  each  aspirant.  Sea 
and  land  are  compassed  to  gain  one  influential  delegate,  who 
“  owns  ”  other  delegates. 

At  length  the  period  of  expectation  and  preparation  is  over, 
and  the  summer  sun  rises  upon  the  fateful  day  to  which  eveiy 
politician  in  the  party  has  looked  forward  for  three  years. 
Long  before  the  time  (usually  11  a.m.)  fixed  for  the  beginning 
of  business,  every  part  of  the  hall,  erected  specially  foi  the 
gathering  —  a  hall  often  large  enough  to  hold  from  ten  to  fif¬ 
teen  thousand  persons  —  is  crowded.1  The  delegates  —  who 

i  Admission  is  of  course  by  ticket,  and  the  prices  given  for  tickets  to  those 
who  having  obtained  them,  sell  them,  run  high,  up  to  $30,  or  even  $50. 


CHAP.  LIV  THE  NOMINATING  CONVENTION  AT  WORK 


471 


in  1896  were  924  in  the  Republican  Convention  and  934  in  the 
Democratic  —  are  a  mere  drop  in  the  ocean  of  faces.  Eminent 
politicians  from  every  State  of  the  Union,  senators  and  repre¬ 
sentatives  from  Washington  not  a  few,  journalists  and  re¬ 
porters,  ladies,  sight-seers  from  distant  cities,  as  well  as  a 
swarm  of  partisans  from  the  city  itself,  press  in;  some  sem¬ 
blance  of  order  being  kept  by  the  sergeant-at-arms  and  his 
marshals.  Some  wear  devices,  sometimes  the  badge  of  their 
State,  or  of  their  organization;  sometimes  the  colours  or 
emblem  of  their  favourite  aspirant.  Each  State  delegation  has 
its  allotted  place  marked  by  the  flag  of  the  State  floating  from 
a  pole ;  but  leaders  may  be  seen  passing  from  one  group  to 
another,  while  the  spectators  listen  to  the  band  playing  popular 
airs,  and  cheer  any  well-known  figure  that  enters. 

When  the  assembly  is  “  called  to  order,”  a  prayer  is  offered 
—  each  day’s  sitting  begins  with  a  prayer  by  some  clergyman 
of  local  eminence,  the  susceptibilities  of  various  denominations 
being  duly  respected  in  the  selection  —  and  business  proceeds 
according  to  the  order  described  in  last  chapter.  First  come 
the  preliminaries,  appointment  of  committees  and  chairmen, 
then  the  platform,  and  probably  on  the  second  day,  but  per¬ 
haps  later,  the  nominations  and  balloting,  the  latter  sometimes 
extending  over  several  days.  There  is  usually  both  a  forenoon 
and  an  afternoon  session. 

The  convention  presents  in  sharp  contrast  and  frequent 
alternation  the  two  most  striking  features  of  American  meet¬ 
ings —  their  orderliness  and  their  excitability.  Everything 
is  done  according  to  strict  rule,  with  a  scrupulous  observance 
of  small  formalities.  Points  of  order  almost  too  fine  for  a 
parliament  are  taken,  argued,  decided  on  by  the  chair,  to  whom 
every  one  bows.  Yet  the  passions  that  sway  the  multitude 
are  constantly  bursting  forth  in  storms  of  cheering  or  hissing 
at  an  allusion  to  a  favourite  aspirant  or  an  obnoxious  name, 
and  five  or  six  speakers  often  take  the  floor  together,  shouting 
and  gesticulating  at  each  other  till  the  chairman  obtains  a 
hearing  for  one  of  them.  Of  course  it  depends  on  the  chair¬ 
man  whether  or  no  the  convention  sinks  into  a  mob.  A  chair¬ 
man  with  a  weak  voice,  or  a  want  of  prompt  decision,  or  a 
suspicion  of  partisanship,  may  bring  the  assembly  to  the  verge 
of  disaster,  and  it  has  more  than  once  happened  that  when  the 


472  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


confusion  that  prevailed  would  have  led  to  an  irregular  vote 
which  might  have  been  subsequently  disputed,  the  action  of 
the  manager  acting  for  the  winning  horse  has,  by  waiving 
some  point  of  order  or  consenting  to  an  adjournment,  saved 
the  party  from  disruption.  Even  in  the  noisiest  scenes  the 
singular  good  sense  and  underlying  love  of  fair  play  — fair 
play  according  to  the  rules  of  the  game,  which  do  not  exclude 
some  dodges  repugnant  to  an  honourable  man  —  will  often 
reassert  itself,  and  pull  back  the  vehicle  from  the  edge  of  the 

precipice.  ,  . 

The  chief  interest  of  the  earlier  proceedings  lies  in  the  indi¬ 
cations  which  speeches  and  voting  give  of  the  relative  strength 
of  the  factions.  Sometimes  a  division  on  the  choice  of  a  chair¬ 
man,  or  on  the  adoption  of  a  rule,  reveals  the  tendencies  of 
the  majority,  or  of  influential  leaders,  in  a  way  which  sends 
the  chances  of  an  aspirant  swiftly  up  or  down  the  barometer 
of  opinion.  So  when  the  nominating  speeches  come,  it  is  not 
so  much  their  eloquence  that  helps  a  nominee  as  the  warmth 
with  which  the  audience  receives  them,  the  volume  of  cheering 
and  the  length  of  time,  sometimes  fifteen  minutes,  during 
which  the  transport  lasts.  The  rhetoric  is  usually  pompous 
and  impassioned.  To  read  a  speech,  even  a  short  speech,  from 
copious  notes,  is  neither  irregular  nor  rare. 

While  forenoon  and  evening,  perhaps  even  late  evening,  are 
occupied  with  the  sittings  of  the  convention,  canvassing  and 
intrigue  go  on  more  briskly  than  ever  during  the  rest  of  the 
day  and  night.  Conferences  are  held  between  delegations 
anxious  to  arrange  for  a  union  of  forces  on  one  candidate. 
Divided  delegations  hold  meetings  of  their  own  members, 
meetings  often  long  and  stormy,  behind  closed  doors,  outside 
which  a  curious  crowd  listens  to  the  angry  voices  within,  and 
snatches  at  the  reports  which  the  dispersing  members  give  of 
the  result.  Sometimes  the  whole  issue  of  the  convention  hinges 
on  the  action  of  the  delegates  of  a  great  State,  which,  like 
New  York,  under  the  unit  rule,  can  throw  seventy-two  votes 
into  the  trembling  scale. 

As  it  rarely  happens  that  any  aspirant  is  able  to  command 
at  starting  a  majority  of  the  whole  convention,  the  object  of 
each  is  to  arrange  a  combination  whereby  he  may  gather  from 
the  supporters  of  other  aspirants  votes  sufficient  to  make  up 


chap,  liy  THE  NOMINATING  CONVENTION  AT  WORK 


473 


the  requisite  majority,  be  it  two-thirds,  according  to  the  Demo¬ 
cratic  rule,  or  a  little  more  than  a  half,  according  to  the 
Republican.  Let  us  take  the  total  number  of  votes  at  820  — 
the  figure  in  1888.  There  are  usually  two  aspirants  command¬ 
ing  each  from  230  to  330;  one  or  two  others  with  from  50  to 
100,  and  the  rest  with  much  smaller  figures,  10  to  30  each. 
A  combination  can  succeed  in  one  of  two  ways :  (a)  One  of 
the  stronger  aspirants  may  pick  up  votes,  sometimes  quickly, 
sometimes  by  slow  degrees,  from  the  weaker  candidates,  suffi¬ 
cient  to  overpower  the  rival  Favourite ;  ( b )  each  of  the  strong¬ 
est  aspirants  may  hold  his  forces  so  well  together  that  after 
repeated  balloting  it  becomes  clear  that  neither  can  win  against 
the  resistance  of  the  other.  Neither  faction  will,  however, 
give  way,  because  there  is  usually  bitterness  between  them, 
because  each  would  feel  humiliated,  and  because  each  aspirant 
has  so  many  friends  that  his  patronage  will  no  more  than 
suffice  for  the  clients  to  whom  he  is  pledged  already.  Hence 
one  or  other  of  the  baffled  Favourites  suddenly  transfers  the 
votes  he  commands  to  some  one  of  the  weaker  men,  who  then 
so  rapidly  “  develops  strength  ”  that  the  rest  of  the  minor  fac¬ 
tions  go  over  to  him,  and  he  obtains  the  requisite  majority. 
Experience  has  so  well  prepared  the  tacticians  for  one  or  other 
of  these  issues  that  the  game  is  always  played  with  a  view  to 
them.  The  first  effort  of  the  managers  of  a  Favourite  is  to 
capture  the  minor  groups  of  delegates  who  support  one  or 
other  of  the  Favourite  Sons  and  Dark  Horses.  Not  till  this 
proves  hopeless  do  they  decide  to  sell  themselves  as  dear  as 
they  can  by  taking  up  and  carrying  to  victory  a  Dark  Horse 
or  perhaps  even  a  Favourite  Son,  thereby  retaining  the  pleasure 
of  defeating  the  rival  Favourite,  while  at  the  same  time  estab¬ 
lishing  a  claim  for  themselves  and  their  faction  on  the  aspirant 
whom  they  carry. 

It  may  be  asked  why  a  Dark  Horse  often  prevails  against 
the  Favourites,  seeing  that  either  of  the  latter  has  a  much 
larger  number  of  delegates  in  his  favour.  Ought  not  the  wish 
of  a  very  large  group  to  have  so  much  weight  with  the  minor 
groups  as  to  induce  them  to  come  over  and  carry  the  man  whom 
a  powerful  section  of  the  party  obviously  desires?  The  reason 
why  this  does  not  happen  is  that  a  Favourite  is  often  as  much 
hated  by  one  strong  section  as  he  is  liked  by  another,  and  if 


474  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


the  hostile  section  is  not  strong  enough  to  keep  him  out  by  its 
unaided  vote,  it  is  sure  to  be  able  to  do  so  by  transferring 
itself  to  some  other  aspirant.  Moreover,  a  Favourite  has  often 
less  chance  with  the  minor  groups  than  a  Dark  Horse  may 
have.  He  has  not  the  charm  of  novelty.  His  “  ins  and  outs  ” 
are  known;  the  delegations  weighed  his  merits  before  they 
left  their  own  State,  and  if  they,  or  the  State  convention  that 
instructed  them,  decided  against  him  then,  they  are  slow  to 
adopt  him  now.  They  have  formed  a  habit  of  “  antagonizing  ” 
him,  whereas  they  have  no  hostility  to  some  new  and  hitherto 
inconspicuous  aspirant. 

Let  us  now  suppose  resolutions  and  nominating  speeches 
despatched,  and  the  curtain  raised  for  the  third  act  of  the 
convention.  The  chairman  raps  loudly  with  his  gavel,  an¬ 
nouncing  the  call  of  States  for  the  vote.  A  hush  falls  on  the 
multitude,  a  long  deep  breath  is  drawn,  tally  books  are  opened 
and  pencils  grasped,  while  the  clerk  reads  slowly  the  names 
of  State  after  State.  As  each  is  called,  the  chairman  of  its 
delegation  rises  and  announces  the  votes  it  gives,  bursts  of 
cheering  from  each  faction  in  the  audience  welcoming  the  votes 
given  to  the  object  of  its  wishes.  Inasmuch  as  the  disposition 
of  most  of  the  delegates  has  become  known  beforehand,  not 
only  to  the  managers,  but  to  the  public  through  the  press,  the 
loudest  welcome  is  given  to  a  delegate  or  delegation  whose 
vote  turns  out  better  than  had  been  predicted. 

In  the  first  scene  of  this  third  and  decisive  act  the  Favour¬ 
ites  have,  of  course,  the  leading  parts.  Their  object  is  to 
produce  an  impression  of  overwhelming  strength,  so  the  whole 
of  this  strength  is  displayed,  unless,  as  occasionally  happens, 
an  astute  manager  holds  back  a  few  votes.  This  is  also  the 
bright  hour  of  the  Favourite  Sons.  Each  receives  the  vote  of 
his  State,  but  each  usually  finds  he  has  little  to  expect  from 
external  help,  and  his  friends  begin  to  consider  into  what  other 
camp  they  had  better  march  over.  The  Dark  Horses  are  in 
the  background,  nor  is  it  yet  possible  to  say  which  (if  any) 
of  them  will  come  to  the  front. 

The  first  ballot  seldom  decides  much,  yet  it  gives  a  new 
aspect  to  the  battle-field,  for  the  dispositions  of  some  groups 
of  voters  who  had  remained  doubtful  is  now  revealed,  and  the 
managers  of  each  aspirant  are  better  able  to  tell,  from  the  way 


CHAP.  LIV  THE  NOMINATING  CONVENTION  AT  WORK 


475 


in  which  delegations  are  divided,  in  what  quarters  they  are 
most  likely  to  gain  or  lose  votes  on  the  subsequent  ballots. 
They  whisper  hastily  together,  and  try,  in  the  few  moments 
they  have  before  the  second  ballot  is  upon  them,  to  prepare 
some  new  line  of  defence  or  attack. 

The  second  ballot,  taken  in  the  same  way,  sometimes  reveals 
even  more  than  the  first.  The  smaller  and  more  timid  delega¬ 
tions,  smitten  with  the  sense  of  their  weakness,  despairing  of 
their  own  aspirant,  and  anxious  to  be  on  the  winning  side, 
begin  to  give  way;  or  if  this  does  not  happen  on  the  second 
ballot,  it  may  do  so  on  the  third.  Rifts  open  in  their  ranks, 
individuals  or  groups  of  delegates  go  over  to  one  of  the  stronger 
candidates,  some  having  all  along  meant  to  do  so,  and  thrown 
their  first  vote  merely  to  obey  instructions  received  or  fulfil 
the  letter  of  a  promise  given.  The  gain  of  even  twenty  or 
thirty  votes  for  one  of  the  leading  candidates  over  his  strength 
on  the  preceding  ballot  so  much  inspirits  his  friends,  and  is 
so  likely  to  bring  fresh  recruits  to  his  standard,  that  a  wily 
manager  will  often,  on  the  first  ballot,  throw  away  some  of 
his  votes  on  a  harmless  antagonist  that  he  may  by  rallying 
them  increase  the  total  of  his  candidate  on  the  second,  and  so 
convey  the  impression  of  growing  strength. 

The  breathing  space  between  each  ballot  and  that  which 
follows  is  used  by  the  managers  for  hurried  consultations. 
Aides-de-camp  are  sent  to  confirm  a  wavering  delegation,  or 
to  urge  one  which  has  been  supporting  a  now  hopeless  aspirant 
to  seize  this  moment  for  dropping  him  and  coming  over  to  the 
winning  standard.  Or  the  aspirant  himself,  who,  hundreds 
of  miles  away,  sits  listening  to  the  click  of  the  busy  wires,  is 
told  how  matters  stand,  and  asked  to  advise  forthwith  what 
course  his  friends  shall  take.  Forthwith  it  must  be,  for  the 
next  ballot  is  come,  and  may  give  the  battle-field  a  new  aspect, 
promising  victory  or  presaging  irretrievable  defeat. 

One  balloting  follows  another  till  what  is  called  “the 
break”  comes.  It  comes  when  the  weaker  factions,  perceiv¬ 
ing  that  the  men  of  their  first  preference  cannot  succeed, 
transfer  their  votes  to  that  one  among  the  aspirants  whom 
they  like  best,  or  whose  strength  they  see  growing.  When 
the  faction  of  one  aspirant  has  set  the  example,  others  are 
quick  to  follow,  and  thus  it  may  happen  that  after  thirty  or 


476  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


forty  ballots  have  been  taken  with  few  changes  of  strength  as 
between  the  two  leading  competitors,  a  single  ballot,  once  the 
break  has  begun,  and  the  column  of  one  or  both  of  these  com¬ 
petitors  has  been  “ staggered,”  decides  the  battle. 

If  one  Favourite  is  much  stronger  from  the  first  than  any 
other,  the  break  may  come  soon  and  come  gently,  i.e.  each 
ballot  shows  a  gain  for  him  on  the  preceding  ballot,  and  he 
marches  so  steadily  to  victory  that  resistance  is  felt  to  be  use¬ 
less.  But  if  two  well-matched  rivals  have  maintained  the 
struggle  through  twenty  or  thirty  ballots,  so  that  the  long 
strain  has  wrought  up  all  minds  to  unwonted  excitement, 
the  break,  when  it  comes,  comes  with  fierce  intensity,  like 
that  which  used  to  mark  the  charge  of  the  Old  Guard.  The 
defeat  becomes  a  rout.  Battalion  after  battalion  goes  over  to 
the  victoys,  while  the  vanquished,  ashamed  of  their  candidate, 
try  to  conceal  themselves  by  throwing  away  their  colours  and 
joining  in  the  cheers  that  acclaim  the  conqueror.  In  the  pict¬ 
uresquely  technical  language  of  politicians,  it  is  a  stampede. 

To  stampede  a  convention  is  the  steadily  contemplated  aim 
of  every  manager  who  knows  he  cannot  win  on  the  first  ballot. 
Sometimes  it  comes  of  itself,  when  various  delegations,  smitten 
at  the  same  moment  by  the  sense  that  one  of  the  aspirants  is 
destined  to  conquer,  go  over  to  him  all  at  once.1  Sometimes 
it  is  due  to  the  action  of  the  aspirant  himself.  In  1880  Mr. 
Blaine,  who  was  one  of  the  two  leading  Favourites,  perceiving 
that  he  could  not  be  carried  against  the  resistance  of  the  Grant 
men,  suddenly  telegraphed  to  his  friends  to  transfer  their 
votes  to  General  Garfield,  till  then  a  scarcely  considered  candi¬ 
date.  In  1884  General  Logan,  also  by  telegraph,  turned  over  his 
votes  to  Mr.  Blaine  between  the  third  and  fourth  ballot,  thereby 
assuring  the  already  probable  triumph  of  that  Favourite. 

When  a  stampede  is  imminent,  only  one  means  exists  of 
averting  it, —  that  of  adjourning  the  convention  so  as  to  stop 
the  panic  and  gain  time  for  a  combination  against  the  winning 
aspirant.  A  resolute  manager  always  tries  this  device,  but 
he  seldom  succeeds,  for  the  winning  side  resists  the  motion 
for  adjournment,  and  the  vote  which  it  casts  on  that  issue  is 
practically  a  vote  for  its  aspirant,  against  so  much  of  the  field 

1  Probably  a  Dark  Horse,  for  the  Favourite  Sons,  having  had  their  turn  in 
the  earlier  ballotings,  have  been  discounted;  and  are  apt  to  excite  more  jeal¬ 
ousy  among  the  delegates  of  other  States. 


CHAP,  liv  THE  NOMINATING  CONVENTION  AT  WORK 


477 


as  has  any  fight  left  in  it.  This  is  the  most  critical  and  excit¬ 
ing  moment  of  the  whole  battle.  A  dozen  speakers  rise  at 
once,  some  to  support,  some  to  resist  the  adjournment,  some 
to  protest  against  debate  upon  it,  some  to  take  points  of  order, 
few  of  which  can  be  heard  over  the  din  of  the  howling  multi¬ 
tude.  Meanwhile,  the  managers  who  have  kept  their  heads 
rush  swiftly  about  through  friendly  delegations,  trying  at  this 
supreme  moment  to  rig  up  a  combination  which  may  resist 
the  advancing  tempest.  Tremendous  efforts  are  made  to  get 
the  second  Favourite’s  men  to  abandon  their  chief  and  “  swing 
into  line  ”  for  some  Dark  Horse  or  Favourite  Son,  with  whose 
votes  they  may  make  head  till  other  factions  rally  to  them. 

“  In  vain,  in  vain,  the  all-consuming  hour 
Relentless  falls  —  ” 

The  battle  is  already  lost,  the  ranks  are  broken  and  cannot  be 
rallied,  nothing  remains  for  brave  men  but  to  cast  their  last 
votes  against  the  winner  and  fall  gloriously  around  their  still 
waving  banner.  The  motion  to  adjourn  is  defeated,  and  the 
next  ballot  ends  the  strife  with  a  hurricane  of  cheering  for  the 
chosen  leader.  Then  a  sudden  calm  falls  on  the  troubled  sea. 
What  is  done  is  done,  and  whether  done  for  good  or  for  ill, 
the  best  face  must  be  put  upon  it.  Accordingly,  the  proposer 
of  one  of  the  defeated  aspirants  moves  that  the  nomination  be 
made  unanimous,  and  the  more  conspicuous  friends  of  other 
aspirants  hasten  to  show  their  good-humour  and  their  loyalty 
to  the  party  as  a  whole  by  seconding  this  proposition.  Then, 
perhaps,  a  gigantic  portrait  of  the  candidate,  provided  by  antici¬ 
pation,  is  hoisted  up,  a  signal  for  fresh  enthusiasm,  or  a  stuffed 
eagle  is  carried  in  procession  round  the  hall. 

Nothing  further  remains  but  to  nominate  a  candidate  for 
the  vice-presidency,  a  matter  of  small  moment  now  that  the 
great  issue  has  been  settled.  This  nomination  is  frequently 
used  to  console  one  of  the  defeated  aspirants  for  the  presiden¬ 
tial  nomination,  or  is  handed  over  to  his  friends  to  be  given 
to  some  politician  of  their  choice.  If  there  be  a  contest,  it  is 
seldom  prolonged  beyond  two  or  three  ballots.  The  conven¬ 
tion  is  at  an  end,  and  in  another  day  the  whole  host  of  ex¬ 
hausted  delegates  and  camp-followers,  hoarse  with  shouting, 
is  streaming  home  along  the  railways. 


CHAPTER  LV 


HOW  PUBLIC  OPINION  RULES  IN  AMERICA 

Of  all  the  experiments  which  America  has  made,  this  en¬ 
deavouring  to  govern  by  public  opinion  is  that  which  best 
deserves  study,  for  her  solution  of  the  problem  differs  from 
all  previous  solutions,  and  she  has  shown  more  boldness  in 
trusting  public  opinion,  in  recognizing  and  giving  effect  to  it, 
than  has  yet  been  shown  elsewhere.  Towering  over  Presi¬ 
dents  and  State  governors,  over  Congress  and  State  legis¬ 
latures,  over  conventions  and  the  vast  machinery  of  party, 
public  opinion  stands  out,  in  the  United  States,  as  the  great 
source  of  power,  the  master  of  servants  who  tremble  before  it. 

Congress  sits  for  two  years  only.  It  is  strictly  limited  by 
the  Constitution,  and  by  the  coexistence  of  the  State  govern¬ 
ments,  which  the  Constitution  protects.  It  has  (except  by  way 
of  impeachment)  no  control  over  the  Federal  executive,  which 
is  directly  named  by  and  responsible  to  the  people.  So,  too, 
the  State  legislatures  sit  for  short  periods,  do  not  appoint  the 
State  executives,  are  hedged  in  by  the  prohibitions  of  the  State 
constitutions.  The  people  frequently  legislate  directly  by 
enacting  or  altering  a  constitution.  The  only  check  on  the 
mass  is  that  which  they  have  themselves  imposed,  and  which 
the  ancient  democracies  did  not  possess,  the  difficulty  of  chang¬ 
ing  a  rigid  constitution.  And  this  difficulty  is  serious  only  as 
regards  the  Federal  Constitution. 

As  this  is  the  most  developed  form  of  popular  government, 
so  is  it  also  the  form  which  most  naturally  produces  what  I 
have  called  government  by  public  opinion.  Popular  govern¬ 
ment  may  be  said  to  exist  wherever  all  power  is  lodged  in  and 
issues  from  the  people.  Government  by  public  opinion  exists 
where  the  wishes  and  views  of  the  people  prevail,  even  before 
they  have  been  conveyed  through  the  regular  law-appointed 
organs,  and  without  the  need  of  their  being  so  conveyed. 

478 


chap,  lv  HOW  PUBLIC  OPINION  RULES  IN  AMERICA 


479 


Where  the  power  of  the  people  is  absolute,  legislators  and 
administrators  are  quick  to  catch  its  wishes  in  whatever  way 
they  may  be  indicated,  and  do  not  care  to  wait  for  the  methods 
which  the  law  prescribes.  This  happens  in  America. 

A  consideration  of  the  nature  of  the  State  governments,  as 
of  the  National  government,  will  show  that  legal  theory  as 
well  as  popular  self-confidence  gives  birth  to  this  rule  of 
opinion.  Supreme  power  resides  in  the  whole  mass  of  citizens. 
They  have  prescribed,  in  the  strict  terms  of  a  legal  document, 
the  form  of  government.  They  alone  have  the  right  to  change 
it,  and  that  only  in  a  particular  way.  They  have  committed 
only  a  part  of  their  sovereignty  to  their  executive  and  legisla¬ 
tive  agents,  reserving  the  rest  to  themselves.  Hence  their  will, 
or,  in  other  words,  public  opinion,  is  constantly  felt  by  these 
agents  to  be,  legally  as  well  as  practically,  the  controlling 
authority.  In  England,  Parliament  is  the  nation,  not  merely 
by  a  legal  fiction,  but  because  the  nation  looks  to  Parliament 
only,  having  neither  reserved  any  authority  to  itself  nor  be¬ 
stowed  any  elsewhere.  In  America,  Congress  is  not  the 
nation,  and  does  not  claim  to  be  so. 

The  ordinary  functions  and  business  of  government,  the 
making  of  laws,  the  imposing  of  taxes,  the  interpretation  of 
laws  and  their  execution,  the  administration  of  justice,  the 
conduct  of  foreign  relations,  are  parcelled  out  among  a  number 
of  bodies  and  persons  whose  powers  are  so  carefully  balanced 
and  touch  at  so  many  points  that  there  is  a  constant  risk  of 
conflicts,*  even  of  deadlocks.  Some  of  the  difficulties  thence 
arising  are  dealt  with  by  the  courts,  as  questions  of  the  inter¬ 
pretation  of  the  Constitution.  But  in  many  cases  the  interven¬ 
tion  of  the  courts,  which  can  act  only  in  a  suit  between  parties, 
comes  too  late  to  deal  with  the  matter,  which  may  be  an  urgent 
one  ;  and  in  some  cases  there  is  nothing  for  the  courts  to  decide, 
because  each  of  the  conflicting  powers  is  within  its  legal  right. 
The  Senate,  for  instance,  may  refuse  the  measures  which  the 
House  thinks  necessary.  The  President  may  veto  bills  passed 
by  both  Houses,  and  there  may  not  be  a  two-thirds  majority  to 
pass  them  over  his  veto.  Congress  may  urge  the  President  to 
take  a  certain  course,  and  the  President  may  refuse.  The 
President  may  propose  a  treaty  to  the  Senate,  and  the  Senate 
may  reject  it.  In  such  cases  there  is  a  stoppage  of  govern- 


480  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


mental  action  which,  may  involve  loss  to  the  country.  The 
master,  however,  is  at  hand  to  settle  the  quarrels  of  his  ser¬ 
vants.  If  the  question  be  a  grave  one,  and  the  mind  of  the 
country  clear  upon  it,  public  opinion  throws  its  weight  into  one 
or  other  scale,  and  its  weight  is  decisive.  Should  opinion  be 
nearly  balanced,  'it  is  no  doubt  difficult  to  ascertain,  till  the  next 
election  arrives,  which  of  many  discordant  cries  is  really  the 
prevailing  voice.  This  difficulty  must,  in  a  large  country, 
where  frequent  plebiscites  are  impossible,  be  endured ;  and  it 
may  be  well,  when  the  preponderance  of  opinion  is  not  great, 
that  serious  decisions  should  not  be  quickly  taken.  The  gen¬ 
eral  truth  remains  that  a  system  of  government  by  checks  and 
balances  specially  needs  the  presence  of  an  arbiter  to  incline  the 
scale  in  favour  of  one  or  other  of  the  balanced  authorities,  and 
that  public  opinion  must  therefore  be  more  frequently  invoked 
and  more  constantly  active  in  America  than  in  other  countries. 

Those  who  invented  this  machinery  of  checks  and  balances 
were  anxious  not  so  much  to  develop  public  opinion  as  to  resist 
and  build  up  breakwaters  against  it.  No  men  were  less  revo¬ 
lutionary  in  spirit  than  the  founders  vof  the  American  Consti¬ 
tution.  They  had  made  a  revolution  in  the  name  of  Magna 
Charta  and  the  Bill  of  Bights  :  they  were  penetrated  by  a  sense 
of  the  dangers  incident  to  democracy.  They  conceived  of  pop¬ 
ular  opinion  as  aggressive,  unreasoning,  passionate,  futile,  and 
a  breeder  of  mob  violence.  We  shall  presently  inquire  whether 
this  conception  has  been  verified.  Meantime  be  it  noted  that 
the  efforts  made  in  1787  to  divide  authority  and,  so  to  speak, 
force  the  current  of  the  popular  will  into  many  small  channels 
instead  of  permitting  it  to  rush  down  one  broad  bed,  have 
really  tended  to  exalt  public  opinion  above  the  regular  legally 
appointed  organs  of  government.  Each  of  these  organs  is  too 
small  to  form  opinion,  too  narrow  to  express  it,  too  weak  to 
give  effect  to  it.  It  grows  up  not  in  Congress,  .not  in  State 
legislatures,  not  in  those  great  conventions  which  frame  plat¬ 
forms  and  choose  candidates,  but  at  large  among  the  people. 
It  is  expressed  in  voices  everywhere.  It  rules  as  a,  pervading 
and  impalpable  power,  like  the  ether  which  passes  through  all 
things.  It  binds  all  the  parts  of  the  complicated  system 
together,  and  gives  them  whatever  unity  of  aim  and  ;action  they 
possess. 


chap,  lv  HOW  PUBLIC  OPINION  RULES  IN  AMERICA 


481 


In  the  United  States  public  opinion  is  the  opinion  of  the 
whole  nation,  with  little  distinction  of  social  classes.  The 
politicians,  including  the  members  of  Congress  and  of  State 
legislatures,  are,  perhaps,  not  (as  Americans  sometimes  insinu¬ 
ate)  below,  yet  certainly  not  above  the  average  level  of  their 
constituents.  They  find  no  difficulty  in  keeping  touch  with 
outside  opinion.  Washington  or  Albany  may  corrupt  them, 
but  not  in  the  way  of  modifying  their  political  ideas.  They 
do  not  aspire  to  the  function  of  forming  opinion.  They  are 
like  the  Eastern  slave  who  says,  “  I  hear  and  obey.”  Nor  is 
there  any  one  class  or  set  of  men,  or  any  one  “  social  layer,” 
which  more  than  another  originates  ideas  and  builds  up  politi¬ 
cal  doctrine  for  the  mass.  The  opinion  of  the  nation  is  the 
resultant  of  the  views,  not  of  a  number  of  classes,  but  of  a 
multitude  of  individuals,  diverse,  no  doubt,  from  one  another, 
but,  for  the  purposes  of  politics  far  less  diverse  than  if  they 
were  members  of  groups  defined  by  social  rank  or  by  property. 

The  consequences  are  noteworthy.  Statesmen  cannot,  as  in 
Europe,  declare  any  sentiment  which  they  find  telling  on  their 
friends  or  their  antagonists  to  be  confined  to  the  rich,  or  to 
the  governing  class,  and  to  be  opposed  to  the  general  sentiment 
of  the  people.  In  America  you  cannot  appeal  from  the  classes 
to  the  masses.  What  the  employer  thinks,  his  workmen  think.1 
What  the  wholesale  merchant  feels,  the  retail  storekeeper  feels, 
and  the  poorer  customers  feel.  Divisions  of  opinion  are  verti¬ 
cal  and  not  horizontal.  Obviously  this  makes  opinion  more 
easily  ascertained,  while  increasing  its  force  as  a  governing 
power,  and  gives  to  the  whole  people,  without  distinction  of 
classes,  a  clearer  and  fuller  consciousness  of  being  the  rulers 
of  their  country  than  European  peoples  have.  Every  man 
knows  that  he  is  himself  a  part  of  the  government,  bound  by 
duty  as  well  as  by  self-interest  to  devote  part  of  his  time  and 
thoughts  to  it.  He  may  neglect  this  duty,  but  he  admits  it  to 
be  a  duty.  So  the  system  of  party  organizations  already 
described  is  built  upon  this  theory ;  and  as  this  system  is  more 
recent,  and  is  the  work  of  practical  politicians,  it  is  even  better 
evidence  of  the  general  acceptance  of  the  doctrine  than  are  the 
provisions  of  constitutions. 

1  Of  course  I  do  not  include  questions  specially  relating  to  labour,  in  which 
there  may  be  a  direct  conflict  of  interests. 

2  L 


CHAPTER  LVI 


THE  ACTION  OE  PUBLIC  OPINION 

In  the  United  States  there  are  comparatively  few  persons 
who  devote  themselves  to  constant  thinking  about  public  affairs 
and  endeavouring  to  form  the  opinion  of  the  nation.  There 
is  also  a  smaller  proportion  than  in  European  countries,  such 
as  England  or  Erance  or  Germany,  of  persons  who  do  not  care 
about  politics  at  all,  and  so  have  really  no  political  opinions 
even  when  they  vote.  Between  the  few  who  think  steadily  and 
those  who  hardly  think  at  all  on  political  subjects  stands  the 
great  mass  of  the  nation.  It  is  by  and  among  them  rather 
than  by  and  among  the  small  class  constantly  occupied  with 
those  subjects  that  opinion  is  formed  as  well  as  tested,  created 
as  well  as  moulded.  Political  light  and  heat  do  not  radiate 
out  from  a  centre  as  in  England.  They  are  diffused  all  through 
the  atmosphere,  and  are  little  more  intense  in  the  inner  sphere 
of  practical  politicians  than  elsewhere.  The  ordinary  citizens 
are  interested  in  politics,  and  watch  them  with  intelligence, 
the  same  kind  of  intelligence  (though  a  smaller  quantity  of  it) 
as  they  apply  to  their  own  business.  They  are  forced  by  inces¬ 
sant  elections  to  take  a  more  active  part  in  public  affairs  than 
is  taken  by  any  European  people.  They  think  their  own  com¬ 
petence  equal  to  that  of  their  representatives  and  office-bearers ; 
and  they  are  not  far  wrong.  They  do  not  therefore  look  up 
to  their  statesmen  for  guidance,  but  look  around  to  one  another, 
carrying  to  its  extreme  the  principle  that  in  the  multitude  of 
counsellors  there  is  wisdom. 

In  America,  therefore,  opinion  is  not  made  but  grows.  Of 
course  it  must  begin  somewhere;  but  it  is  often  hard  to  say 
where  or  how.  As  there  are  in  the  country  a  vast  number  of 
minds  similar  in  their  knowledge,  beliefs,  and  attitude,  with 
few  exceptionally  powerful  minds  applying  themselves  to 
politics,  it  is  natural  that  the  same  idea  should  often  occur  to 

482 


CHAP.  LVI 


THE  ACTION  OF  PUBLIC  OPINION 


483 


several  or  many  persons  at  the  same  time,  that  each  event  as 
it  occurs  should  produce  the  same  impression  and  evoke  the 
same  comments  over  a  wide  area.  When  everybody  desires 
to  agree  with  the  majority,  and  values  such  accord  more  highly 
than  the  credit  of  originality,  this  tendency  is  all  the  stronger. 
An  idea  once  launched,  or  a  view  on  some  current  question 
propounded,  hies  everywhere  on  the  wings  of  a  press  eager 
for  novelties.  Publicity  is  the  easiest  thing  in  the  world  to 
obtain;  but  as  it  is  attainable  by  all  notions,  phrases,  and 
projects,  wise  and  foolish  alike,  the  struggle  for  existence  — 
that  is  to  say,  for  public  attention  —  is  severe. 

Here,  of  course,  as  everywhere  else  in  the  world,  some  one 
person  or  group  must  make  a  beginning,  but,  whereas  in  Eu¬ 
rope  men  can  generally  note  who  does  make  the  beginning,  in 
America  a  view  often  seems  to  arise  spontaneously,  and  to  be 
the  work  of  many  rather  than  of  few.  The  individual  counts 
for  less,  the  mass  counts  for  more.  In  propagating  a  doctrine 
not  hitherto  advocated  by  any  party,  the  methods  used  are 
similar  to  those  of  the  old  country.  A  central  society  is 
formed,  branch  societies  spring  up  over  the  country,  a  journal 
(perhaps  several  journals)  is  started,  and  if  the  movement 
thrives,  an  annual  convention  of  its  supporters  is  held,  at 
which  speeches  are  made  and  resolutions  adopted.  If  any 
striking  personality  is  connected  with  the  movement  as  a 
leader,  he  cannot  but  become  a  sort  of  figure-head.  Yet  it 
happens  more  rarely  in  America  than  in  England  that  an 
individual  leader  gives  its  character  to  a  movement,  partly 
because  new  movements  less  often  begin  among,  or  are  taken 
up  by,  persons  already  known  as  practical  politicians. 

As  regards  opinion  on  the  main  questions  of  the  hour,  such 
as  the  extension  of  slavery  long  was,  and  civil  service  reform, 
the  currency,  the  tariff,  are  now,  it  rises  and  falls,  much  as 
in  any  other  country,  under  the  influence  of  events  which  seem 
to  make  for  one  or  the  other  of  the  contending  views.  There 
is  this  difference  between  America  and  Europe,  that  in  the 
former  speeches  seem  to  influence  the  average  citizen  less, 
because  he  is  more  apt  to  do  his  own  thinking;  newspaper 
invective  less,  because  he  is  used  to  it;  current  events  rather 
more,  because  he  is  better  informed  of  them.  Party  spirit  is 
probably  no  stronger  in  America  than  in  England,  so  far  as 


484  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  ill 


a  man’s  thinking  and  talking  go,  but  it  tells  more  upon  him 
when  he  comes  to  vote. 

An  illustration  of  what  has  been  said  may  be  found  in  the 
fact  that  the  proportion  of  persons  who  actually  vote  at  an 
election  to  those  whose  names  appear  on  the  voting  list  is 
larger  in  America  than  in  Europe.  In  some  English  constit¬ 
uencies  this  percentage  does  not  exceed  60  per  cent,  though 
at  exciting  moments  it  is  larger  than  this,  taking  the  country 
as  a  whole.  At  the  hotly  contested  general  election  of  1892 
it  reached  77  per  cent.  In  America  80  per  cent  may  be  a  fair 
average  in  presidential  elections,  which  call  out  the  heaviest 
vote,  and  in  1880  and  1892  this  proportion  was  exceeded. 
Something  may  be  ascribed  to  the  more  elaborate  local  or¬ 
ganization  of  American  parties ;  but  against  this  ought  to  be 
set  the  fact  that  the  English  voting  mass  includes  not  quite 
two-thirds,  the  American  nearly  the  whole,  of  the  adult  male 
population. 

We  may  now  go  on  to  inquire  in  what  manner  opinion, 
formed  or  forming,  is  able  to  influence  the  conduct  of  affaiis? 

The  legal  machinery  through  which  the  people  are  by  the 
Constitution  (Federal  and  State)  invited  to  govern  is  that  of 
elections.  Occasionally,  when  the  question  of  altering  a  State 
constitution  comes  up,  the  citizen  votes  directly  for  or  against 
a  proposition  put  to  him  in  the  form  of  a  constitutional  amend¬ 
ment;  but  otherwise  it  is  only  by  voting  for  a  man  as  candi¬ 
date  that  he  can  give  expression  to  his  views,  and  directly 
support  or  oppose  some  policy.  Now,  in  every  country  voting 
for  a  man  is  an  inadequate  way  of  expressing  one’s  views  of 
policy,  because  the  candidate  is  sure  to  differ  in  one  or  more 
questions  from  many  of  those  who  belong  to  the  party.  It  is 
especially  inadequate  in  the  United  States,  because  the  strict¬ 
ness  of  party  discipline  leaves  little  freedom  of  individual 
thought  or  action  to  the  member  of  a  legislature,  because  the 
ordinary  politician  has  little  interest  in  anything  but  the  regu¬ 
lar  party  programme,  and  because  in  no  party  are  the  citizens 
at  large  permitted  to  select  their  candidate,  seeing  that  he  is 
found  for  them  and  forced  on  them  by  the  professionals  of  the 
party  organization.  While,  therefore,  nothing  is  easier  than 
for  opinion  which  runs  in  the  direct  channel  of  party  to  give 
effect  to  itself  frequently  and  vigorously,  nothing  is  harder 


CHAP.  LVI 


THE  ACTION  OF  PUBLIC  OPINION 


485 


than  for  opinion  which  wanders  out  of  that  channel  to  find  a 
legal  and  regular  means  of  bringing  itself  to  bear  upon  those 
who  govern  either  as  legislators  or  executive  officers.  This 
is  the  weak  point  of  the  American  party  system,  perhaps  of 
every  party  system,  from  the  point  of  view  of  the  independent- 
minded  citizen,  as  it  is  the  strong  point  from  that  of  the  party 
manager.  A  body  of  unorganized  opinion  is,  therefore,  help¬ 
less  in  the  face  of  compact  parties.  It  is  obliged  to  organize. 
When  organized  for  the  promotion  of  a  particular  view  or 
proposition,  it  has  in  the  United  States  three  courses  open 
to  it. 

The  first  is  to  capture  one  or  other  of  the  great  standing 
parties,  i.e.  to  persuade  or  frighten  that  party  into  adopting 
this  view  as  part  of  its  programme,  or,  to  use  the  technical 
term,  making  it  a  plank  of  the  platform,  in  which  case  the 
party  candidates  will  be  bound  to  support  it.  This  is  the  most 
effective  course,  but  the  most  difficult;  for  a  party  is  sure  to 
have  something  to  lose  as  well  as  to  gain  by  embracing  a  new 
dogma. 

The  second  course  is  for  the  men  who  hold  the  particular 
view  to  declare  themselves  a  new  party,  put  forward  their  own 
programme,  run  their  own  candidates.  Besides  being  costly 
and  troublesome,  this  course  would  be  thought  ridiculous  where 
the  view  or  proposition  is  not  one  of  first-rate  importance, 
which  has  already  obtained  wide  support.  Where,  however, 
it  is  applicable,  it  is  worth  taking,  even  when  the  candidates 
cannot  be  carried,  for  it  serves  as  an  advertisement,  and  it 
alarms  the  old  party,  from  which  it  withdraws  voting  strength 
in  the  persons  of  the  dissidents. 

The  third  is  to  cast  the  voting  weight  of  the  organized  pro¬ 
moters  of  the  doctrine  or  view  in  question  into  the  scale  of 
whichever  party  shows  the  greatest  friendliness,  or  seems  most 
open  to  conversion.  As  in  many  States  the  regular  parties 
are  pretty  equally  balanced,  even  a  comparatively  weak  body 
of  opinion  may  decide  the  result.  Such  a  body  does  not  neces¬ 
sarily  forward  its  own  view,  for  the  candidates  whom  its  vote 
carries  are  nowise  pledged  to  its  programme.  But  it  has  made 
itself  felt,  shown  itself  a  power  to  be  reckoned  with,  improved 
its  chances  of  capturing  one  or  other  of  the  regular  parties,  or 
of  running  candidates  of  its  own  on  some  future  occasion. 


486  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


When  this  transfer  of  the  solid  vote  of  a  body  of  agitators  is 
the  result  of  a  bargain  with  the  old  party  which  gets  the  vote, 
it  is  called  “ selling  out;  ”  and  in  such  cases  it  sometimes  hap¬ 
pens  that  the  bargain  secures  one  or  two  offices  for  the  incom¬ 
ing  allies  in  consideration  of  the  strength  they  have  brought. 
But  if  the  new  group  be  honestly  thinking  of  its  doctrines  and 
not  of  the  offices,  the  terms  it  will  ask  will  be  the  nomination 
of  good  candidates,  or  a  more  friendly  attitude  towards  the 

new  view. 

The  third  course  is  applicable  wherever  the  discipline  of 
the  section  which  has  arisen  within  a  party  is  so  good  that  its 
members  can  be  trusted  to  break  away  from  their  former  affili¬ 
ation,  and  vote  solid  for  the  side  their  leaders  have  agreed  to 
favour.  It  is  a  potent  weapon,  and  liable  to  be  abused.  But 
in  a  country  where  the  tide  runs  against  minorities  and  small 
groups,  it  is  most  necessary.  The  possibility  of  its  employ¬ 
ment  acts  as  a  check  on  the  regular  parties,  disposing  them  to 
abstain  from  legislation  which  might  irritate  any  body  of  grow¬ 
ing  opinion  and  tend  to  crystallize  it  as  a  new  organization, 
and  making  them  more  tolerant  of  minor  divergences  from  the 
dogmas  of  the  orthodox  programme  than  their  fierce  love  of 
party  uniformity  would  otherwise  permit. 

So  far  we  have  been  considering  the  case  of  persons  advo¬ 
cating  some  specific  opinion  or  scheme.  As  respects  the  ordi¬ 
nary  conduct  of  business  by  officials  and  legislators,  the  fear 
of  popular  displeasure  to  manifest  itself  at  the  next  election 
is,  of  course,  the  most  powerful  of  restraining  influences. 
Under  a  system  of  balanced  authorities,  such  fear  helps  to 
prevent  or  remove  deadlocks  as  well  as  the  abuse  of  power  by 
any  one  authority.  A  President  (or  State  governor)  who  has 
vetoed  bills  passed  by  Congress  (or  his  State  legislature)  is 
emboldened  to  go  on  doing  so  when  he  finds  public  opinion  on 
his  side;  and  Congress  (or  the  State  legislature)  will  hesitate, 
though  the  requisite  majority  may  be  forthcoming,  to  pass 
these  bills  over  the  veto.  A  majority  in  the  House  of  Bepre- 
sentatives,  or  in  a  State  legislative  body,  which  has  abused  the 
power  of  closing  debate  by  the  “  previous  question  ”  rule,  may 
be  frightened  by  expressions  of  popular  disapproval  from 
repeating  the  offence.  lAhen  the  two  branches  of  a  legislat¬ 
ure  differ,  and  a  valuable  bill  has  failed,  or  when  there  has 


CIIAP.  LYI 


THE  ACTION  OF  PUBLIC  OPINION 


487 


been  vexatious  filibustering,  public  opinion  fixes  the  blame 
on  the  party  primarily  responsible  for  the  loss  of  good  meas¬ 
ures  or  public  time,  and  may  punish  it  at  the  next  election. 
Mischief  is  checked  in  America  more  frequently  than  anywhere 
else  by  the  fear  of  exposure,  or  by  newspaper  criticisms 
on  the  first  stage  of  a  bad  scheme.  And,  of  course,  the  fre¬ 
quency  of  elections  —  in  most  respects  a  disadvantage  to  the 
country  —  has  the  merit  of  bringing  the  prospect  of  punish¬ 
ment  nearer. 

It  will  be  asked  how  the  fear  is  brought  home,  seeing  that 
the  result  of  a  coming  election  must  usually  be  uncertain. 
Sometimes  it  is  not  brought  home.  The  erring  majority  in  a 
legislature  may  believe  they  have  the  people  with  them,  or  the 
governor  may  think  his  jobs  will  be  forgotten.  Generally, 
however,  there  are  indications  of  the  probable  set  of  opinion 
in  the  language  held  by  moderate  men  and  the  less  partisan 
newspapers.  When  some  of  the  organs  of  the  party  which  is 
in  fault  begin  to  blame  it,  danger  is  in  the  air,  for  the  other 
party  is  sure  to  use  the  opening  thus  given  to  it.  And  hence, 
of  course,  the  control  of  criticism  is  most  effective  where  par¬ 
ties  are  nearly  balanced.  Opinion  seems  to  tell  with  special 
force  when  the  question  is  between  a  legislative  body  passing 
bills  or  ordinances,  and  a  president  or  governor,  or  mayor, 
vetoing  them,  the  legislature  recoiling  whenever  they  think 
the  magistrate  has  got  the  people  behind  him.  Even  small 
fluctuations  in  a  vote  produce  a  great  impression  on  the  minds 
of  politicians. 

These  defects  which  may  be  noted  in  the  constitutional 
mechanism  for  enabling  public  opinion  to  rule  promptly  and 
smoothly,  are,  in  a  measure,  covered  by  the  expertness  of 
Americans  in  using  all  kinds  of  voluntary  and  private  agencies 
for  the  diffusion  and  expression  of  opinion.  Where  the  object 
is  to  promote  some  particular  cause,  associations  are  formed 
and  federated  to  one  another,  funds  are  collected,  the  press  is 
set  to  work,  lectures  are  delivered.  When  the  law  can  prof¬ 
itably  be  invoked  (which  is  often  the  case  in  a  country  gov¬ 
erned  by  constitutions  standing  above  the  legislature),  counsel 
are  retained  and  suits  instituted,  all  with  the  celerity  and  skill 
which  long  practice  in  such  work  has  given.  If  the  cause  has 
a  moral  bearing,  efforts  are  made  to  enlist  the  religious  or  semi- 


488  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


religious  magazines  and  the  ministers  of  religion.1  Depute 
tions  proceed  to  Washington  or  to  the  State  capital,  and  lay 
siege  to  individual  legislators.  Sometimes  a  distinct  set  of 
women’s  societies  is  created,  whose  action  on  and  through 
women  is  all  the  more  powerful  because  the  deference  shown 
to  the  so-called  weaker  sex  enables  them  to  do  what  would  be 
resented  in  men.  Not  long  ago,  I  think  in  Iowa,  when  a  tem¬ 
perance  ticket  was  being  run  at  the  elections,  parties  of  ladies 
gathered  in  front  of  the  polling  booths  and  sang  hymns  all  day 
while  the  citizens  voted.  Every  one  remembers  the  “  Women’s 
Temperance  Crusade,”  when,  in  several  Western  States,  bands  of 
women  entered  the  drinking  saloons  and,  by  entreaties  and  re¬ 
proaches,  drove  out  the  customers.  In  no  country  has  any  sen¬ 
timent  which  touches  a  number  of  persons  so  many  ways  of 
making  itself  felt ;  though,  to  be  sure,  when  the  first  and  chief 
effort  of  every  group  is  to  convince  the  world  that  it  is  strong, 
and  growing  daily  stronger,  great  is  the  difficulty  of  determin¬ 
ing  whether  those  who  are  vocal  are  really  numerous  or  only 
noisy. 

For  the  promotion  of  party  opinion  on  the  leading  questions 
that  divide  or  occupy  parties,  there  exist,  of  course,  the  regu¬ 
lar  party  organizations.  Opinion  is,  however,  the  thing  with 
which  this  mechanism  is  at  present  least  occupied.  Its  main 
objects  are  the  selection  of  the  party  candidates  and  the  con¬ 
duct  of  the  canvass  at  elections.  Traces  of  the  other  purpose 
remain  in  the  practice  of  adopting,  at  State  and  National  con¬ 
ventions,  a  platform,  or  declaration  of  principles  and  views, 
which  is  the  electoral  manifesto  of  the  party,  embodying  the 
tenets  which  it  is  supposed  to  live  for.  When  any  important 
election  comes  off,  the  party  organization  sends  its  speakers 
out  on  stumping  tours,  and  distributes  a  flood  of  campaign 
literature.  At  other  times  opinion  moves  in  a  different  plane 
from  that  of  party  machinery,  and  is  scarcely  affected  by  it. 

In  Europe  the  persons  who  move  in  the  inner  sphere  of 
politics,  give  unbroken  attention  to  political  problems,  always 
discussing  them  both  among  themselves  and  before  the  people. 
As  the  corresponding  persons  in  America  are  not  organized  into 
a  class,  and  to  some  extent  not  engaged  in  practical  politics, 

1  In  Philadelphia,  during  a  struggle  against  the  City  Boss,  the  clergy  were 
requested  to  preach  election  sermons. 


CHAT.  LVI 


THE  ACTION  OF  PUBLIC  OPINION 


489 


the  work  of  discussion  has  been  left  to  be  done,  in  the  three 
it  off  years,”  by  the  journalists  and  a  few  of  the  more  active 
and  thoughtful  statesmen,  with  casual  aid  from  such  private 
citizens  as  may  be  interested.  Now  many  problems  require 
uninterrupted  and  what  may  be  called  scientific  or  professional 
study.  Foreign  policy  obviously  presents  such  problems.  Of 
foreign  policy  America  has  usually  little  occasion  to  think,  but 
some  of  her  domestic  difficulties  are  such  as  to  demand  that 
careful  observation  and  unbroken  reflection  which  neither  her 
executive  magistrates,  nor  her  legislatures,  nor  any  leading 
class  among  her  people  now  give. 

Those  who  know  the  United  States  and  have  been  struck  by 
the  quantity  of  what  is  called  politics  there,  may  think  that 
this  description  underrates  the  volume  and  energy  of  public 
political  discussion.  I  admit  the  endless  hubbub,  the  constant 
elections  in  one  district  or  another,  the  paragraphs  in  the  news¬ 
papers  as  to  the  movements  or  intentions  of  this  or  that  promi¬ 
nent  man,  the  reports  of  what  is  doing  in  Congress  and  in  the 
State  legislatures,  the  decisions  of  the  Federal  courts  in  con¬ 
stitutional  questions,  the  rumours  about  new  combinations,  the 
revelations  of  King  intrigues,  the  criticisms  on  appointments. 
It  is  nevertheless  true  that  in  proportion  to  the  number  of 
words  spoken,  articles  printed,  telegrams  sent,  and  acts  per¬ 
formed,  less  than  is  needed  is  done  to  form  serious  political 
thought,  and  bring  practical  problems  towards  a  solution. 
The  machine  of  government  carries  these  problems  slowly  on¬ 
ward.  But  fortunately  the  people  have  usually  no  need  to 
hurry.  It  is  not  so  much  by  or  through  the  machinery  of  gov¬ 
ernment  as  by  their  own  practical  good  sense,  which  at  last 
finds  a  solution  the  politicians  may  have  failed  to  find,  that  the 
American  people  advance.  In  the  company  of  the  best  citizens 
of  one  of  the  great  cities,  every  visitor  is  struck  by  the  acute¬ 
ness,  the  insight,  the  fairness  with  which  the  condition  and 
requirements  of  the  country  are  discussed,  the  freedom  from 
such  passion  or  class  feeling  as  usually  clouds  equally  able 
Europeans,  the  substantial  agreement  between  members  of  both 
the  great  parties  as  to  the  reforms  that  are  wanted,  the  patriot¬ 
ism  which  is  so  proud  of  the  real  greatness  of  the  Union  as 
frankly  to  acknowledge  its  defects,  the  generous  appreciation 
of  all  that  is  best  in  the  character  or  political  methods  of 


490  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


other  nations.  One  feels  what  a  reserve  fund  of  wisdom  and 
strength  the  country  has  in  such  men,  who  so  far  from  being 
aristocrats  or  recluses,  are  usually  the  persons  whom  their 
native  fellow-townsmen  best  know  and  most  respect  as  promi¬ 
nent  in  business  and  in  the  professions. 

In  ordinary  times  the  practical  concern  of  such  men  with  either 
National  or  local  politics  is  not  very  close.  But  when  there 
comes  an  uprising  against  the  bosses,  it  is  these  men  who  are 
called  upon  to  put  themselves  at  the  head  of  it ;  or  when  a  ques¬ 
tion  like  that  of  civil  service  reform  has  been  before  the  nation 
for  some  time,  it  is  their  opinion  which  strikes  the  keynote  for 
that  of  their  city  or  district,  and  which  shames  or  alarms  the 
professional  politicians.  Men  of  the  same  type,  though  indi¬ 
vidually  less  conspicuous  than  those  whom  I  take  as  examples, 
are  to  be  found  in  many  of  the  smaller  towns,  especially  in  the 
Eastern  and  Middle  States,  and  as  time  goes  on  their  influence 
grows.  Much  of  the  value  of  this  most  educated  and  reflective 
class  in  America  consists  in  their  being  no  longer  blindly  at¬ 
tached  to  their  party,  because  more  alive  to  the  principles  for 
which  parties  ought  to  exist.  They  may  be  numerically  a  small 
minority  of  the  voters,  but  as  in  many  States  the  two  regular 
parties  command  a  nearly  equal  normal  voting  strength,  a 
small  section  detached  from  either  party  can  turn  an  election 
by  throwing  its  vote  for  the  candidate,  to  whichever  party  he 
belongs,  whom  it  thinks  capable  and  honest.  Thus  an  inde¬ 
pendent  group  wields  a  power  altogether  disproportionate  to 
its  numbers,  and  by  a  sort  of  side  wind  can  not  only  make  its 
hostility  feared,  but  secure  a  wider  currency  for  its  opinions. 
What  opinion  chiefly  needs  in  America  in  order  to  control  the 
politicians  is  not  so  much  men  of  leisure,  for  men  of  leisure 
may  be  dilettantes  and  may  lack  a  grip  of  realities,  but  a  more 
sustained  activity  on  the  part  of  the  men  of  vigorously  inde¬ 
pendent  minds,  a  more  sedulous  effort  on  their  part  to  impress 
their  views  upon  the  masses,  and  a  disposition  on  the  part  of 
the  ordinary  well-meaning  but  often  inattentive  citizens  to 
prefer  the  realities  of  good  administration  to  outworn  party 
cries. 


CHAPTER  LYII 

FAILURES  AND  SUCCESSES  OF  PUBLIC  OPINION 

The  obvious  weakness  of  government  by  opinion  is  tbe  diffi¬ 
culty  of  ascertaining  it.  Such  is  the  din  of  voices  that  it  is 
hard  to  say  which  cry  prevails,  which  is  swelled  by  many, 
which  only  by  a  few  throats.  The  organs  of  opinion  seem 
almost  as  numerous  as  the  people  themselves,  and  they  are 
all  engaged  in  representing  their  own  view  as  that  ot  the 
people  ”  Like  other  valuable  articles,  genuine  opinion  is  sur¬ 
rounded  by  counterfeits.  The  one  positive  test  applicable  is 
that  of  an  election,  and  an  election  can  at  best  do  no  more 
than  test  the  division  of  opinion  between  two  or  three  great 
parties,  leaving  subsidiary  issues  uncertain,  while  m  many 
cases  the  result  depends  so  much  on  the  personal  merits  ot 
the  candidates  as  to  render  interpretation  difficult.  An  Ameri¬ 
can  statesman  is  in  no  danger  of  consciously  running  coun  er  t 
public  opinion,  but  how  is  he  to  discover  whether  any  particu¬ 
lar  opinion  is  making  or  losing  way,  how  is  he  to  gauge  the 
voting  strength  its  advocates  can  put  forth,  or  the  mora 
authority  its  advocates  can  exert?  Elections  cannot  be  fur¬ 
ther  multiplied,  for  they  are  too  numerous  already.  The  refe¬ 
rendum,  or  plan  of  submitting  a  specific  question  to  the  popular 
vote,  is  the  logical  resource,  but  it  is  troublesome  and  costly  to 
take  the  votes  of  millions  of  people  over  an  area  so  large  as  that 
of  one  of  the  greater  States ;  much  more  then  is  the  method 
difficult  to  apply  in  Eederal  matters.  This  is  the  first  draw¬ 
back  to  the  rule  of  public  opinion.  The  choice  of  persons  for 
offices  is  only  an  indirect  and  often  unsatisfactory  way  ot  de¬ 
claring  views  of  policy,  and  as  the  elections  at  which  such 
choices  are  made  come  at  fixed  intervals,  time  is  lost  m  wait¬ 
ing  for  the  opportunity  of  delivering  the  popular  judgment. 

As  the  progress  of  democracy  has  increased  the  sell-dis¬ 
trust  and  submission  to  the  popular  voice  of  legislators,  so  the 


492  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


part  III 


defects  incident  to  a  system  of  restrictions  and  balances  have 
been  aggravated,  finis  tlie  difficulty  inherent  in  government 
by  public  opinion  makes  itself  seriously  felt.  It  can  ex¬ 
press  desires,  but  lias  not  the  machinery  for  turning  them 
into  practical  schemes.  It  can  determine  ends,  but  is  less  fit 
to  examine  and  select  means.  Yet  it  has  weakened  the  organs 
by  which  the  business  of  finding  appropriate  means  ought  to 
be  discharged. 

Public  opinion  is  slow  and  clumsy  in  grappling  with  large 
piactical  problems.  It  looks  at  them,  talks  incessantly  about 
them,  complains  of  Congress  for  not  solving  them,  is  distressed 
that  they  do  not  solve  themselves.  But  they  remain  unsolved. 
Vital  decisions  have  usually  hung  fire  longer  than  they  would 
have  been  likely  to  do  in  European  countries.  The  war  of 
181 seemed  on  the  point  of  breaking  out  over  and  over  again 
before  it  came  at  last.  The  absorption  of  Texas  was  a  ques¬ 
tion  of  many  years.  The  Extension  of  Slavery  question  came 
before  the  nation  in  1819 ;  after  1840  it  was  the  chief  source  of 
trouble;  year  by  year  it  grew  more  menacing;  year  by  year 
the  nation  was  seen  more  clearly  to  be  drifting  towards  the 
breakers.  Everybody  felt  that  something  must  be  done.  But 
it  was  the  function  of  no  one  authority  in  particular  to  discover 
a  remedy,  as  it  would  have  been  the  function  of  a  cabinet  in 
Europe.  I  do  not  say  the  sword  might  not  in  any  case  have 
been  invoked,  for  the  temperature  of  Southern  feeling  had 
been  steadily  rising  to  war  point.  But  the  history  of  1840-60 
leaves  an  impression  of  the  dangers  which  may  result  from 
fettering  the  constitutional  organs  of  government,  and  trusting 
to  public  sentiment  to  bring  things  right. 

And  the  same  thing  holds,  mutatis  mutandis,  of  State  govern¬ 
ments.  In  them  also  there  is  no  set  of  persons  whose  special 
duty  it  is  to  find  remedies  for  admitted  evils.  The  structure 
of  the  government  provides  the  requisite  machinery  neither 
for  forming  nor  for  guiding  a  popular  opinion,  disposed  of 
itself  to  recognize  only  broad  and  patent  facts,  and  to  be 
swayed  only  by  such  obvious  reasons  as  it  needs  little  reflec¬ 
tion  to  follow.  Admirable  practical  acuteness,  admirable  in¬ 
genuity  in  inventing  and  handling  machinery,  whether  of  iron 
and  wood  or  of  human  beings,  coexist,  in  the  United  States, 
with  an  aversion  to  the  investigation  of  general  principles  as 


CHAP.  LVII 


FAILURES,  SUCCESSES  OF  PUBLIC  OPINION  493 


well  as  trains  of  systematic  reasoning.  The  liability  to  be 
caught  by  fallacies,  the  inability  to  recognize  facts  which  are 
not  seen  but  must  be  inferentially  found  to  exist,  the  in¬ 
capacity  to  imagine  a  future  which  must  result  from  the  un¬ 
checked  operation  of  present  forces,  these  are  indeed  the 
defects  of  the  ordinary  citizen  in  all  countries,  and  if  they 
are  conspicuous  in  America,  it  is  only  because  the  ordinary 
citizen,  who  is  more  intelligent  there  than  elsewhere,  is  also 
more  potent. 

We  must,  however,  remember  how  much  is  gained  as  well  as 
lost  by  the  slow  and  hesitating  working  of  public  opinion  in  the 
United  States.  So  tremendous  a  force  would  be  dangerous  if 
it  moved  rashly.  Acting  over  and  gathered  from  an  enormous 
area,  in  which  there  exist  many  local  differences,  it  needs  time, 
often  a  long  time,  to  become  conscious  of  the  preponderance  of 
one  set  of  tendencies  over  another.  The  elements  both  of  local 
difference  and  of  class  difference  must  be  (so  to  speak)  well 
shaken  up  together,  and  each  part  brought  into  contact  with 
the  rest,  before  the  mixed  liquid  can  produce  a  precipitate  in 
the  form  of  a  practical  conclusion.  And  in  this  is  seen  the 
difference  between  the  excellence  as  a  governing  power  of 
opinion  in  the  whole  Union,  and  opinion  within  the  limits  of  a 
particular  State.  The  systems  of  constitutional  machinery  by 
which  public  sentiment  acts  are  similar  in  the  greater  and  in 
the  smaller  area;  the  constitutional  maxims  practically  identical. 
But  public  opinion,  which  moves  slowly,  and,  as  a  rule,  temper¬ 
ately,  in  the  field  of  National  affairs,  is  sometimes  hasty  and 
reckless  in  State  affairs. 

We  may  go  on  to  ask  how  far  American  opinion  succeeds 
in  the  simpler  duty,  which  opinion  must  discharge  in  all 
countries,  of  supervising  the  conduct  of  business,  and  judging 
the  current  legislative  work  which  Congress  and  other  legis¬ 
latures  turn  out. 

Here  again  the  question  turns  not  so  much  on  the  excellence 
of  public  opinion  as  on  the  adequacy  of  the  constitutional 
machinery  provided  for  its  action.  That  supervision  and  criti¬ 
cism  may  be  effective,  it  must  be  easy  to  fix  on  particular  per¬ 
sons  the  praise  for  work  well  done,  the  blame  for  work  neglected 
or  ill-performed.  Experience  shows  that  good  men  are  the 
better  for  a  sense  of  their  responsibility  and  ordinary  men 


494  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


useless  without  it.  The  American  plan  of  dividing  powers, 
eminent  as  are  its  other  advantages,  makes  it  hard  to  fix 
responsibility.  The  executive  can  usually  allege  that  it  had 
not  received  from  the  legislature  the  authority  necessary  to 
enable  it  to  grapple  with  a  difficulty ;  while  in  the  legislature 
there  is  no  one  person  or  group  of  persons  on  whom  the  blame 
due  for  that  omission  or  refusal  can  be  laid.  Suppose  some 
gross  dereliction  of  duty  to  have  occurred.  The  people  are 
indignant.  A  victim  is  wanted,  who,  for  the  sake  of  the  ex¬ 
ample  to  others,  ought  to  be  found  and  punished,  either  by 
law  or  by  general  censure.  But  perhaps  he  cannot  be  found, 
because  out  of  several  persons  or  bodies  who  have  been  con¬ 
cerned,  it  is  hard  to  apportion  the  guilt  and  award  the  penalty. 
Where  the  sin  lies  at  the  door  of  Congress,  it  is  not  always  pos¬ 
sible  to  arraign  either  the  speaker  or  the  dominant  majority,  or 
any  particular  party  leader.  Where  a  State  legislature  or  a  city 
council  has  misconducted  itself,  the  difficulty  is  still  greater, 
because  party  ties  are  less  strict  in  such  a  body,  proceedings 
are  less  fully  reported,  and  both  parties  are  apt  to  be  equally 
implicated  in  the  abuses  of  private  legislation.  Not  uncom¬ 
monly  there  is  presented  the  sight  of  an  exasperated  public 
going  about  like  a  roaring  lion,  seeking  whom  it  may  devour, 
and  finding  no  one.  The  results  in  State  affairs  would  be 
much  worse  were  it  not  for  the  existence  of  the  governor  with 
his  function  of  vetoing  bills,  because  in  many  cases,  knowing 
that  he  can  be  made  answerable  for  the  passage  of  a  bad 
measure,  he  is  forced  up  to  the  level  of  a  virtue  beyond  that 
of  the  natural  man  in  politics.  And  the  disposition  to  seek  a 
remedy  for  municipal  misgovernment  in  increasing  the  powers 
of  the  mayor  illustrates  the  same  principle. 

Although  the  failures  of  public  opinion  in  overseeing  the 
conduct  of  its  servants  are  primarily  due  to  the  want  of  appro¬ 
priate  machinery,  they  are  increased  by  its  characteristic  tem¬ 
per.  Quick  and  strenuous  in  great  matters,  it  is  heedless  in 
small  matters,  over-kindly  and  indulgent  in  all  matters.  It 
suffers  weeds  to  go  on  growing  till  they  have  struck  deep  root. 
It  has  so  much  to  do  in  looking  after  both  Congress  and  its 
State  legislature,  a  host  of  executive  officials,  and  perhaps  a 
city  council  also,  that  it  may  impartially  tolerate  the  misdoings 
of  all  till  some  important  issue  arises.  To  catch  and  to  hold 


CHAP.  LVII 


FAILURES,  SUCCESSES  OF  PUBLIC  OPINION  495 


the  attention  of  the  people  is  the  chief  difficulty  as  well  as  the 
first  duty  of  an  American  reformer. 

The  long-suffering  tolerance  of  public  opinion  towards  incom¬ 
petence  and  misconduct  in  officials  and  public  men  generally,  is 
a  feature  which  has  struck  recent  European  observers.  It  is 
the  more  remarkable  because  nowhere  is  executive  ability 
more  valued  in  the  management  of  private  concerns,  in  which 
the  stress  of  competition  forces  every  manager  to  secure  at 
whatever  price  the  most  able  subordinates.  We  may  attrib¬ 
ute  it  partly  to  the  good  nature  of  the  people,  which  makes 
them  over-lenient  to  nearly  all  criminals,  partly  to  the  pre¬ 
occupation  with  their  private  affairs  of  the  most  energetic 
and  useful  men,  who  therefore  cannot  spare  time  to  unearth 
abuses  and  get  rid  of  offenders,  partly  to  an  indifference  in¬ 
duced  by  a  sort  of  fatalistic  sentiment.  This  sentiment  acts 
in  two  ways.  Being  optimistic,  it  disposes  each  man  to  believe 
that  things  will  come  out  right  whether  he  “  takes  hold  ”  him¬ 
self  or  not,  and  that  it  is  therefore  no  great  matter  whether 
a  particular  Bing  or  Boss  is  suppressed.  And  in  making  each 
individual  man  feel  his  insignificance,  it  disposes  him  to  leave 
to  the  multitude  the  task  of  setting  right  what  is  every  one 
else’s  business  just  as  much  as  his  own.  An  American  does 
not  smart  under  the  same  sense  of  personal  wrong  from  the 
mismanagement  of  his  public  business,  from  the  exaction  of 
high  city  taxes  and  their  malversation,  as  an  Englishman 
would  in  the  like  case.  If  he  suffers,  he  consoles  himself  by 
thinking  that  he  suffers  with  others,  as  part  of  the  general 
order  of  things,  which  he  is  no  more  called  upon  to  correct  than 

are  his  neighbours.  t 

It  may  be  charged  as  a  weak  point  in  the  rule  of  public 
opinion,  that  by  fostering  this  habit  it  has  chilled  activity  and 
dulled  the  sense  of  responsibility  among  the  leaders  in  political 
life.  It  has  made  them  less  eager  and  strenuous  in  striking 
out  ideas  and  plans  of  their  own,  less  bold  in  propounding 
those  plans,  more  sensitive  to  the  reproach  of  being  a  crotchet- 
monger  or  a  doctrinaire.  That  new  or  unpopular  ideas  are 
more  frequently  started  by  isolated  thinkers,  economists,  social 
■  reformers,  than  by  statesmen,  may  be  set  down  to  the.  fact 
that  practical  statesmanship  indisposes  men  to  theorizing. 
But  the  practical  statesman  is  apt  to  be  timid  in  advocacy  as 


496  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


r.\nT  in 


well  as  infertile  in  suggestion.  He  seems  to  be  always  listen¬ 
ing  for  the  popular  voice,  always  afraid  to  commit  himself  to 
a  view  which  may  turn  out  unpopular.  It  is  a  fair  conjecture 
that  this  may  be  due  to  his  being  by  his  profession  a  far  more 
habitual  worshipper  as  well  as  observer  of  public  opinion,  than 
will  be  the  case  with  men  who  are  by  profession  thinkers  and 
students.  Philosophy,  taking  the  word  to  include  the  histori¬ 
cal  study  of  the  forces  which  work  upon  mankind  at  large,  is 
needed  by  a  statesman  not  only  as  a  consolation  for  the  disap¬ 
pointments  of  his  career,  but  as  a  corrective  to  the  supersti¬ 
tions  and  tremors  which  the  service  of  the  multitude  implants. 

The  enormous  force  of  public  opinion  is  a  danger  to  the 
people  themselves,  as  well  as  their  leaders.  It  no  longer 
makes  them  tyrannical.  But  it  fills  them  with  an  undue  con¬ 
fidence  in  their  wisdom,  their  virtue,  and  their  freedom.  It 
may  be  thought  that  a  nation  which  uses  freedom  well  can 
hardly  have  too  much  freedom ;  yet  even  such  a  nation  may 
be  too  much  inclined  to  think  freedom  an  absolute  and  all-suffi¬ 
cient  good,  to  seek  truth  only  in  the  voice  of  the  majority,  to 
mistake  prosperity  for  greatness.  Such  a  nation,  seeing  noth¬ 
ing  but  its  own  triumphs,  and  hearing  nothing  but  its  own 
praises,  seems  to  need  a  succession  of  men  like  the  prophets  of 
Israel  to  rouse  the  people  out  of  their  self-complacency,  to 
refresh  their  moral  ideals,  to  remind  them  that  the  life  is  more 
than  meat,  and  the  body  more  than  raiment,  and  that  to  whom 
much  is  given  of  them  shall  much  also  be  required.  If  Amer¬ 
ica  has  no  prophets  of  this  order,  she  fortunately  possesses 
two  classes  of  men  who  maintain  a  wholesome  irritation. 
These  are  the  instructed  critics  who  exert  a  growing  influence 
on  opinion  through  the  higher  newspapers,  and  by  literature 
generally,  and  the  philanthropic  reformers  who  tell  more 
directly  upon  the  multitude,  particularly  through  the  churches. 
Both  classes  combined  may  not  as  yet  be  doing  all  that  is 
needed.  But  the  significant  point  is  that  their  influence  repre¬ 
sents  not  an  ebbing  but  a  flowing  tide.  If  the  evils  they  com¬ 
bat  exist  on  a  larger  scale  than  in  past  times,  they,  too,  are 
more  active  and  more  courageous  in  rousing  and  reprehending 
their  fellow-countrymen. 

The  strong  point  of  the  American  system,  the  dominant  fact 
of  the  situation,  is  the  healthiness  of  public  opinion,  and  the  con- 


chap,  lvii  FAILURES,  SUCCESSES  OF  PUBLIC  OPINION  497 


fcrol  which  it  exerts.  As  Abraham  Lincoln  said  in  liis  famous 
contest  with  Douglas,  “  With  public  sentiment  on  its  side  every¬ 
thing  succeeds ;  with  public  sentiment  against  it,  nothing 
succeeds.” 

The  conscience  and  common  sense  of  the  nation  as  a  whole 
keep  down  the  evils  which  have  crept  into  the  working  of  the 
Constitution,  and  may  in  time  extinguish  them.  Public  opin¬ 
ion  is  a  sort  of  atmosphere,  fresh,  keen,  and  full  of  sunlight, 
like  that  of  the  American  cities,  and  this  sunlight  kills  many 
of  those  noxious  germs  which  are  hatched  where  politicians 
congregate.  That  which,  varying  a  once  famous  phrase,  we 
may  call  the  genius  of  universal  publicity,  has  some  disagree¬ 
able  results,  but  the  wholesome  ones  are  greater  and  more 
numerous.  Selfishness,  injustice,  cruelty,  tricks,  and  jobs  of 
all  sorts  shun  the  light;  to  expose  them  is  to  defeat  them. 
No  serious  evils,  no  rankling  sore  in  the  body  politic,  can  re¬ 
main  long  concealed,  and  when  disclosed,  it  is  half  destroyed. 
So  long  as  the  opinion  of  a  nation  is  sound,  the  main  lines  of 
its  policy  cannot  go  far  wrong,  whatever  waste  of  time  and 
money  may  be  incurred  in  carrying  them  out. 

The  frame  of  the  American  government  has  assumed  and 
trusted  to  the  activity  of  public  opinion,  not  only  as  the  power 
which  must  correct  and  remove  the  difficulties  due  to  the  re¬ 
strictions  imposed  on  each  department,  and  to  possible  colli¬ 
sions  between  them,  but  as  the  influence  which  must  supply 
the  defects  incidental  to  a  system  wdiich  works  entirely  by  the 
machinery  of  popular  elections.  Under  a  system  of  elections 
one  man’s  vote  is  as  good  as  another,  the  vicious  and  ignorant 
have  as  much  weight  as  the  wise  and  good.  A  system  of  elec¬ 
tions  might  be  imagined  which  would  provide  no  security  for 
due  deliberation  or  full  discussion,  a  system  which,  while  dem¬ 
ocratic  in  naipe,  recognizing  no  privilege,  and  referring  every¬ 
thing  to  the  vote  of  the  majority,  would  in  practice  be  hasty, 
violent,  tyrannical.  It  is  with  such  a  possible  democracy  that 
one  has  to  contrast  the  rule  of  public  opinion  as  it  exists  in  the 
United  States.  Opinion  declares  itself  legally  through  elec¬ 
tions.  But  opinion  is  at  work  at  other  times  also,  and  has 
other  methods  of  declaring  itself.  It  secures  full  discussion  of 
issues  of  policy  and  of  the  characters  of  men.  It  suffers  noth¬ 
ing  to  be  concealed.  It  listens  patiently  to  all  the  arguments 


498  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


that  are  addressed  to  it.  Eloquence,  education,  wisdom,  the 
authority  derived  from  experience  and  high  character,  tell 
upon  it  in  the  long  run,  and  have,  perhaps  not  always  their 
due  influence,  but  yet  a  great  and  growing  influence.  Thus  a 
democracy  governing  itself  through  a  constantly  active  public 
opinion,  and  not  solely  by  its  intermittent  mechanism  of  elec¬ 
tions,  tends  to  become  patient,  tolerant,  reasonable,  and  is  more 
likely  to  be  unembittered  and  unvexed  by  class  divisions. 

It  is  the  existence  of  such  a  public  opinion  as  this,  the  prac¬ 
tice  of  freely  and  constantly  reading,  talking,  and  judging  of 
public  affairs  with  a  view  to  voting  thereon,  rather  than  the 
mere  possession  of  political  rights,  that  gives  to  popular  gov¬ 
ernment  that  educated  and  stimulative  power  which  is  so  fre¬ 
quently  claimed  as  its  highest  merit.  Those  who,  in  the  last 
generation,  were  forced  to  argue  for  democratic  government 
against  oligarchies  or  despots,  were  perhaps  inclined,  if  not  to 
exaggerate  the  value  of  extended  suffrage  and  a  powerful  legis¬ 
lature,  at  least  to  pass  too  lightly  over  the  concomitant  con¬ 
ditions  by  whose  help  such  institutions  train  men  to  use  liberty 
well.  History  does  not  support  the  doctrine  that  the  mere 
enjoyment  of  power  fits  large  masses  of  men,  any  more  than 
individuals  or  classes,  for  its  exercise.  /  Along  with  that  enjoy¬ 
ment  there  must  be  found  some  one  or  more  of  various  auspi¬ 
cious  conditions,  such  as  a  direct  and  fairly  equal  interest  in  the 
common  welfare,  the  presence  of  a  class  or  group  of  persons 
respected  and  competent  to  guide,  an  absence  of  religious  or 
race  hatreds,  a  high  level  of  education  or  at  least  of  intelli¬ 
gence,  old  habits  of  local  self-government,  the  practice  of  un¬ 
limited  free  discussion. 

In  America  it  is  not  simply  the  habit  of  voting,  but  the 
briskness  and  breeziness  of  the  whole  atmosphere  of  public 
life,  and  the  process  of  obtaining  information  and  discussing 
it,  of  hearing  and  judging  each  side,  that  form  the  citizen’s 
intelligence.  True  it  is  that  he  would  gain  less  from  this 
process  if  it  did  not  lead  up  to  the  exercise  of  voting  power : 
he  would  not  learn  so  much  on  the  road  did  not  the  poll¬ 
ing-booth  stand  at  the  end  of  it.  But  if  it  were  his  lot,  as 
it  is  that  of  the  masses  in  some  European  countries,  to  exer¬ 
cise  his  right  of  suffrage  under  few  of  these  favouring  con¬ 
ditions,  the  educational  value  of  the  vote  would  become 


CHAP.  LVII 


FAILURES,  SUCCESSES  OF  PUBLIC  OPINION  499 


comparatively  small.  It  is  the  habit  of  breathing  as  well  as 
helping  to  form  public  opinion  that  cultivates,  develops,  tiains 
the  average  American.  It  gives  him  a  sense  of  personal  re¬ 
sponsibility  stronger,  because  more  constant,  than  exists  m 
those  free  countries  of  Europe  where  he  commits  his  power  to 
a  legislature.  Sensible  that  his  eye  ought  to  be  always  fixed 
on  the  conduct  of  affairs,  he  grows  accustomed  to  read  and 
judge,  not  indeed  profoundly,  sometimes  erroneously,  usually 
under  party  influences,  but  yet  with  a  feeling  that  the  judg¬ 
ment  is  his  own.  He  has  a  sense  of  ownership  in  the  govern¬ 
ment,  and  therewith  a  kind  of  independence  of  manner  as  wel 
as  of  mind  very  different  from  the  demissness  of  the  humbler 
classes  of  the  Old  World.  And  the  consciousness  of  responsi- 
,  bility  which  goes  along  with  this  laudable  pride,  brings  forth 
the  peaceable  fruits  of  moderation.  As  the  Greeks  thought 
that  the  old  families  ruled  their  households  more  gently  than 
upstarts  did,  so  citizens  who  have  been  born  to  power,  born 
into  an  atmosphere  of  legal  right  and  constitutional  authority , 
are  sobered  by  their  privileges.  Despite  their  natural  quick¬ 
ness  and  eagerness,  the  native  Americans  are  politically  pa¬ 
tient.  They  are  disposed  to  try  soft  means  first,  to  expect 
others  to  bow  to  that  force  of  opinion  which  they  themselves 
recognize.  Opposition  does  not  incense  them  ;  danger  does 
not  by  making  them  lose  their  heads,  hurry  them  into  precip¬ 
itate  courses.  In  no  country  does  a  beaten  minority  take  a 
defeat  so  well.  Admitting  that  the  blood  of  the  race  counts 
for  something  in  producing  that  peculiar  coolness  and  self-con¬ 
trol  in  the  midst  of  an  external  effervescence  of  enthusiasm, 
which  is  the  most  distinctive  feature  of  the  American  masses, 
the  habit  of  ruling  by  public  opinion  and  obeying  it  counts  for 
even  more.  It  was  far  otherwise  in  the  South  before  the  war, 
but  the  South  was  not  a  democracy,  and  its  public  opinion  was 

that  of  a  passionate  class.  r  . 

The  best  evidence  for  this  view  is  to  be  found  m  the  educative 
influence  of  opinion  on  new-comers.  Any  one  can  see  how 
severe  a  strain  is  put  on  democratic  institutions  by  the  influx 
every  year  of  half  a  million  of  untrained  Europeans,  not  to 
speak  of  those  French  Canadians  who  now  settle  in  the  North¬ 
eastern  States.  Being  in  most  States  admitted  to  full  civic 
rights  before  they  have  come  to  shake  off  European  notions 


500  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


PART  III 


and  habits,  these  strangers  enjoy  political  power  before  they 
either  share  or  are  amenable  to  American  opinion.  Such  im¬ 
migrants  are  at  first  not  merely  a  dead  weight  in  the  ship,  but 
a  weight  which  party  managers  can,  in  city  politics,  so  shift  as 
to  go  near  upsetting  her.  They  follow  blindly  leaders  of  their 
own  race,  are  not  moved  by  discussion,  exercise  no  judgment  of 
theii  own.  This  lasts  for  some  years,  probably  for  the  rest  of 
life  with  those  who  are  middle-aged  when  they  arrive.  It  lasts 
also  with  those  who  remain  herded  together  in  large  masses, 
and  makes  them  a  dangerous  element  in  manufacturing  and 
mining  districts.  But  the  younger  sort,  when,  if  they  be 
foreigners,  they  have  learnt  English,  and  when,  dispersed  anion or 
Americans  so  as  to  be  able  to  learn  from  them,  they  have  im- 
bibed  the  sentiments  and  ideas  of  the  country,  are  thenceforth 
scarcely  to  be  distinguished  from  the  native  population.  They 
are  more  American  than  the  Americans  in  their  desire  to  put 
on  the  character  of  their  new  country.  This  peculiar  gift  which 
the  Republic  possesses,  of  quickly  dissolving  and  assimilating 
the  foreign  bodies  that  are  poured  into  her,  imparting  to  them 
her  own  qualities  of  orderliness,  good  sense,  self-restraint,  a 
willingness  to  bow  to  the  will  of  the  majority,  is  mainly  due 
to  the  all-pervading  force  of  opinion,  which  the  new-comer,  so 
soon  as  he  has  formed  social  and  business  relations  with 

the  natives,  breathes  in  daily  till  it  insensibly  transmutes 
him. 

If  public  opinion  is  heedless  in  small  things,  it  usually  checks 
measures  which,  even  if  not  oppressive,  are  palpably  selfish  or 
unwise.  If  before  a  mischievous  bill  passes,  its  opponents  can 
get  the  attention  of  the  people  fixed  upon  it,  its  chances  are 
slight.  All  sorts  of  corrupt  or  pernicious  schemes  which  are 
hatched  at  Washington  or  in  the  State  legislatures  are  aban¬ 
doned  because  it  is  felt  that  the  people  will  not  stand  them, 
although  they  could  be  easily  pushed  through  those  not  too 
scrupulous  assemblies.  There  have  been  instances  of  proposals 
which  took  people  at  first  by  the  plausibility,  but  which  the 
criticism  of  opinion  riddled  with  its  unceasing  fire  till  at  last 
they  were  quietly  dropped. 

Public  opinion  often  fails  to  secure  the  appointment  of  the 
est  men  to  places,  but  where  undivided  responsibility  can  be 
fixed  on  the  appointing  authority,  it  prevents,  as  those  who  are 


chap,  lvii  FAILURES,  SUCCESSES  OF  PUBLIC  OPINION  501 


behind  the  scenes  know,  countless  bad  appointments  for  which 
politicians  intrigue. 

In  questions  of  foreign  policy,  opinion  is  a  valuable  reserve 
force.  When  demonstrations  are  made  by  party  leaders  in¬ 
tended  to  capture  the  vote  of  some  particular  section,  the  native 
Americans  only  smile.  But  they  watch  keenly  the  language 
held  and  the  acts  done  by  the  State  Department  (Foreign 
Office),  and,  while  determined  to  support  the  President  in  vin¬ 
dicating  the  rights  of  American  citizens,  would  be  found  ready 
to  check  any  demand  or  act  going  beyond  their  legal  rights 
which  could  tend  to  embroil  them  with  a  foreign  power.  Jus¬ 
tice  and  equity  are  more  generally  recognized  as  binding  upon 
nations  no  less  than  on  individuals.  Whenever  humanity 
comes  into  question,  the  heart  of  the  people  is  sound.  The 
treatment  of  the  Indians  reflects  little  credit  on  the  Western 
settlers  who  have  come  in  contact  with  them,  and  almost  as 
little  on  the  Federal  government,  whose  efforts  to  protect  them 
have  been  often  foiled  by  the  faults  of  its  own  agents,  or  by  its 
own  want  of  promptitude  and  foresight.  But  the  wish  of  the 
people  at  large  has  always  been  to  deal  generously  with  the 
aborigines,  nor  have  appeals  on  their  behalf  ever  failed  to 
command  the  sympathy  and  assent  of  the  country. 

It  has  been  observed  that  the  all-subduing  power  of  the 
popular  voice  may  tell  against  the  appearance  of  great  states¬ 
men  by  dwarfing  aspiring  individualities,  by  teaching  men  to 
discover  and  obey  the  tendencies  of  their  age  rather  than  rise 
above  them  and  direct  them.  If  this  happens  in  America,  it  is 
not  because  the  American  people  fail  to  appreciate  and  follow 
and  exalt  such  eminent  men  as  fortune  bestows  upon  it.  It 
has  a  great  capacity  for  loyalty,  even  for  hero-worship.  “  Our 
people,”  said  an  experienced  American  publicist  to  me,  “  are  in 
reality  hungering  for  great  men,  and  the  warmth  with  which 
even  pinchbeck  geniuses,  men  who  have  anything  showy  or 
taking  about  them,  anything  that  is  deemed  to  betoken  a 
strong  individuality,  are  followed  and  glorified  in  spite  of 
intellectual  emptiness,  and  perhaps  even  moral  shortcomings, 
is  the  best  proof  of  the  fact.”  Henry  Clay  was  the  darling  of 
his  party  for  many  years,  as  Jefferson,  with  less  of  personal 
fascination,  had  been  in  the  preceding  generation.  Daniel 
Webster  retained  the  devotion  of  New  England  long  after  it 


502  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


had  become  clear  that  his  splendid  intellect  was  mated  to  a 
far  from  noble  character.  A  kind  of  dictatorship  was  yielded 
to  Abraham  Lincoln,  whose  memory  is  cherished  almost  like 
that  of  Washington  himself.  I  doubt  if  there  be  any  country 
where  a  really  brilliant  man,  confident  in  his  own  strength, 
and  adding  the  charm  of  a  striking  personality  to  the  gift  of 
popular  eloquence,  would  find  an  easier  path  to  fame  and 
power,  and  would  exert  more  influence  over  the  minds  and 
emotions  of  the  multitude.  Such  a  man,  speaking  to  the  peo¬ 
ple  with  the  independence  of  conscious  strength,  would  find 
himself  appreciated  and  respected. 

Even  as  respects  the  methods  of  political  controversy  an  im¬ 
provement  is  discernible.  Partisans  are  reckless,  but  the  mass 
of  the  people  lends  itself  less  to  acrid  partisanship  that  it  did 
in  the  time  of  Jackson,  or  in  those  first  days  of  the  Republic 
which  were  so  long  looked  back  to  as  a  sort  of  heroic  age. 
Public  opinion  grows  more  temperate,  more  mellow,  and  as¬ 
suredly  more  tolerant.  Its  very  strength  disposes  it  to  bear 
with  opposition  or  remonstrance.  It  respects  itself  *too  much 
to  wish  to  silence  any  voice. 


CHAPTER  LVIII 


THE  HOME  OF  THE  NATION 

There  are  three  points  wherein  the  territories  which  consti¬ 
tute  the  United  States  present  phenomena  new  in  the  annals 
of  the  world.  They  contain  a  huge  people  whose  blood  is 
becoming  mixed  in  an  unprecedented  degree  by  the  concurrent 
immigration  of  numerous  European  races.  We  find  in  them, 
besides  the  predominant  white  nation,  seven  millions  of  men 
belonging  to  a  dark  race,  thousands  of  years  behind  in  its 
intellectual  development,  but  legally  equal  in  political  and 
civil  rights.  And  thirdly,  they  furnish  an  instance  to  which 
no  parallel  can  be  found  of  a  vast  area,  including  regions  very 
dissimilar  in  their  natural  features,  occupied  by  a  population 
nearly  the  whole  of  which  speaks  the  same  tongue,  and  all  of 
which  lives  under  the  same  institutions.  Of  these  phenomena 
the  third  suggests  to  us  thoughts  and  questions  which  cannot 
pass  unnoticed.  No  one  can  travel  in  the  United  States  with¬ 
out  asking  himself  whether  this  immense  territory  will  remain 
united  or  be  split  up  into  a  number  of  independent  communi¬ 
ties;  whether,  even  if  it  remain  united,  diverse  types  of  life 
and  character  will  spring  up  within  it;  whether  and  how  far 
climatic  and  industrial  conditions  will  affect  those  types,  carry¬ 
ing  them  farther  from  the  prototypes  of  Europe.  These  ques¬ 
tions,  as  well  as  other  questions  regarding  the  future  local 
distribution  of  wealth  and  population,  open  fields  of  inquiry 
and  speculation  too  wide  to  be  here  explored.  Yet  some  pages 
may  well  be  given  to  a  rapid  survey  of  the  geographical 
conditions  of  the  United  States,  and  of  the  influence  those  con¬ 
ditions  have  exerted  and  may,  so  far  as  c^n  be  foreseen,  con¬ 
tinue  to  exert  on  the  growth  of  the  nation,  its  political  and 
economical  development.  Beginning  with  a  few  observations 
first  on  the  orography  of  the  country  and  then  upon  its  meteor¬ 
ology,  we  may  consider  how  mountain  ranges  and  climate  have 
hitherto  affected  the  movement  of  colonization  and  the  main 

503 


504  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


PART  III 


stream  of  political  history.  The  chief  natural  sources  of 
wealth  may  next  be  mentioned,  and  their  possible  effect  indi¬ 
cated  upon  the  development  of  population  in  particular  areas, 
as  well  as  upon  the  preservation  of  the  permanent  unity  of  the 
Republic. 

One  preliminary  remark  must  not  be  omitted.  The  relation 
of  geographical  conditions  to  National  growth  changes,  and 
with  the  upward  progress  of  humanity  the  ways  in  which 
Nature  moulds  the  fortunes  of  man  are  always  varying.  Man 
must  in  every  stage  be  for  many  purposes  dependent  upon  the 
circumstances  of  his  physical  environment.  Yet  the  character 
of  that  dependence  changes  with  his  advance  in  civilization. 
At  first  he  is  helpless,  and,  therefore,  passive.  With  what 
Nature  gives  in  the  way  of  food,  clothing,  and  lodging  he  must 
be  content.  She  is  strong,  he  is  weak:  so  she  dictates  his 
whole  mode  of  life.  Presently,  always  by  slow  degrees,  but 
most  quickly  in  those  countries  where  she  neither  gives  lavishly 
nor  yet  presses  on  him  with  a  discouraging  severity,  he  begins 
to  learn  how  to  make  her  obey  him,  drawing  from  her  stores 
materials  which  his  skill  handles  in  such  wise  as  to  make  him 
more  and  more  independent  of  her.  He  defies  the  rigours  of 
climate;  he  overcomes  the  obstacles  which  mountains,  rivers, 
and  forests  place  in  the  way  of  communications ;  he  discovers 
the  seciets  of  the  physical  forces  and  makes  them  his  servants 
in  the  work  of  production.  But  the  very  multiplication  of  the 
means  at  his  disposal  for  profiting  by  what  Nature  supplies 
brings  him  into  ever  closer  and  more  complex  relations  with 
her.  The  variety  of  her  resources,  differing  in  different  re¬ 
gions,  prescribes  the  kind  of  industry  for  which  each  spot  is 
fitted;  and  the  competition  of  nations,  growing  always  keener, 
forces  each  to  maintain  itself  in  the  struggle  by  using  to  the 
utmost  every  facility  for  production  or  for  the  transportation 
of  products.  Thus  certain  physical  conditions,  whether  of  soil 
or  of  climate,  of  accessibility  or  inaccessibility,  or  perhaps  of 
such  available  natural  forces  as  water-power,  conditions  of 
supreme  importance  in  the  earlier  stages  of  man’s  progress,  are 
now  of  less  relative  moment,  while  others,  formerly  of  small 
account,  have  received  their  full  significance  by  our  swiftly 
advancing  knowledge  of  the  secrets  of  nature  and  mastery  of 
her  forces.  It  is  this  which  makes  the  examination  of  the 


CHAP.  LYIII 


THE  HOME  OF  THE  NATION 


505 


influence  of  physical  environment  on  the  progress  of  nations 
so  intricate  a  matter;  for  while  the  environment  remains,  as 
a  whole,  constant,  its  several  parts  vary  in  their  importance 
from  one  age  to  another.  A  certain  severity  of  climate,  for 
instance,  which  retarded  the  progress  of  savage  man,  has  been 
found  helpful  to  semi-civilized  man,  in  stimulating  him  to 
exertion,  and  in  maintaining  a  racial  vigour  greater  than  that 
of  the  inhabitants  of  those  hotter  regions  where  civilization 
first  arose.  And  thus  in  considering  how  man’s  lot  and  fate 
in  the  Western  Continent  have  been  affected  by  the  circum¬ 
stances  of  that  continent,  we  must  have  regard  not  only  to 
what  he  found  on  his  arrival  there,  but  to  the  resources  which 
have  been  subsequently  disclosed.  Nor  can  this  latter  head 
be  exhausted,  because  it  is  impossible  to  conjecture  what  still 
latent  forces  or  capacities  may  be  revealed  in  the  onward  march 
of  science,  and  how  such  a  revelation  may  affect  the  value  of 
the  resources  now  known  to  exist  or  hereafter  to  be  explored. 

It  is  only  on  a  very  few  salient  points  of  this  large  and  com¬ 
plex  subject  that  I  shall  touch  in  sketching  the  outlines  of 
North  American  geography  and  noting  some  of  the  effects  on 
the  growth  of  the  nation  attributable  to  them. 

The  territory  of  the  United  States  extends  nearly  3000  miles 
east  and  west  from  the  Bay  of  Eundy  to  the  mouth  of  the 
Columbia  River,  and  1400  miles  north  and  south  from  the 
Lake  of  the  Woods  to  the  Gulf  of  Mexico  at  Galveston.  Com¬ 
pared  with  Europe,  the  physical  structure  of  this  area  of 
3,025,000  square  miles  (excluding  Alaska)  is  not  only  larger 
in  scale,  but  far  simpler.  Instead  of  the  numerous  peninsulas 
and  islands  of  Europe,  with  the  bold  and  lofty  chains  dividing 
its  peoples  from  one  another,  we  find  no  isles  (except  Long 
Island)  of  any  size  on  the  two  coasts  of  the  United  States, 
only  one  large  peninsula  (that  of  Florida),  and  only  two  moun¬ 
tain  systems.  Not  only  the  lakes  and  rivers,  but  the  plains 
also,  and  the  mountain  ranges,  are  of  enormous  dimensions. 
The  coast  presents  a  smooth  outline.  No  great  inlets,  such  as 
the  Mediterranean  and  the  Baltic,  pierce  the  land  and  cut  off 
one  district  from  another,  furnishing  natural  boundaries  behind 
which  distinct  nations  may  grow  up. 

This  vast  area  may  be  divided  into  four  regions  —  two  of 
level  country,  two,  speaking  roughly,  of  mountain.  Begin- 


506  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  nr 


ning  from  the  Atlantic,  we  find  a  strip  which  on  the  coast  is 
nearly  level,  and  then  rises  gradually  westwards  into  an  undu¬ 
lating  country.  It  varies  in  breadth  from  thirty  or  forty  miles 
in  the  north  to  two  hundred  and  fifty  in  the  south,  and  has 
been  called  by  geographers  the  Atlantic  Plain  and  Slope. 
Behind  this  strip  comes  a  range,  or  rather  a  mass  of  generally 
parallel  ranges,  of  mountains.  These  are  the  Alleghanies,  or 
so-called  “Appalachian  system,”  in  breadth  from  one  hundred 
to  two  hundred  miles,  and  with  an  average  elevation  of  from 
two  to  four  thousand  feet,  some  few  summits  reaching  six 
thousand.  Beyond  them,  still  further  to  the  west,  lies  the 
vast  basin  of  the  Mississippi  and  its  tributaries,  1100  miles 
wide  and  1200  miles  long.  Its  central  part  is  an  almost  un¬ 
broken  plain  for  hundreds  of  miles  on  each  side  the  river,  but 
this  plain  rises  slowly  westward  in  rolling  undulations  into  a 
sort  of  plateau,  which,  at  the  foot  of  the  Kocky  Mountains, 
has  attained  the  height  of  5000  feet  above  the  sea.  The  fourth 
region  consists  of  the  thousand  miles  that  lie  between  the 
Mississippi  basin  and  the  Pacific.  It  includes  three  not  en¬ 
tirely  disconnected  mountain  ranges,  the  Rockies,  the  Sierra 
Nevada  (continued  northwards  in  the  Cascade  Range),  and  the 
much  lower  and  narrower  Coast  Range,  which  runs  along  the 
shore  of  the  ocean.  This  region  is  generally  mountainous, 
though  within  it  there  are  some  extensive  plateaux  and  some 
wide  valleys.  Most  of  it  is  from  4000  to  8000  feet  above  the 
sea,  with  many  summits  exceeding  14,000,  though  none  reaches 
15,000.  A  considerable  part  of  it,  including  the  desert  of 
Nevada,  does  not  drain  into  the  ocean,  but  sees  its  feeble 
streams  received  by  lakes  or  swallowed  up  in  the  ground. 

Before  we  consider  how  these  natural  divisions  have  influ¬ 
enced,  and  must  continue  to  influence,  American  history,  it  is 
well  to  observe  how  materially  they  have  affected  the  climate 
of  the  continent,  which  is  itself  a  factor  of  prime  historical 
importance.  Two  points  deserve  special  notice.  One  is  the 
great  extent  of  temperate  area  which  the  continent  pre¬ 
sents.  As  North  America  is  crossed  by  no  mountain  chains 
running  east  and  west,  corresponding  to  the  Alps  and  Pyrenees 
in  Europe,  or  to  the  Caucasus,  Himalaya,  and  Altai  in  Asia, 
the  cold  winds  of  the  north  sweep  down  unchecked  over  the 
vast  Mississippi  plain,  and  give  its  central  and  southern  parts, 


CHAP.  LVIII 


THE  HOME  OF  THE  NATION 


507 


down  to  the  Gulf  of  Mexico,  winters  cooler  than  the  latitude 
seems  to  promise,  or  than  one  finds  in  the  same  latitudes  in 
Europe.  Nor  ought  the  influence  of  the  neighbouring  seas  to 
pass  unregarded.  Europe  has,  south  of  the  narrow  Mediter¬ 
ranean,  a  vast  reservoir  of  heat  in  the  Sahara :  North  America 
has  the  wide  stretch  of  the  Gulf  of  Mexico  and  the  Caribbean 
Sea,  with  no  region  both  hot  and  arid  beyond.  Thus  Ten¬ 
nessee  and  Arkansas,  in  the  latitude  of  Andalusia  and  Damas¬ 
cus,  have  a  winter  like  that  of  Edinburgh  twenty  degrees  further 
to  the  north;  and  while  the  summer  of  Minnesota,  in  latitude 
45°,  is  as  hot  as  that  of  Bordeaux  or  Venice  in  the  same  lati¬ 
tude,  the  winter  is  far  more  severe.  Only  the  lowlands  along 
the  Atlantic  coast  as  far  north  as  Cape  Hatteras  have  a  high 
winter  as  well  as  summer  temperature,  for  they  are  warmed 
by  the  hot  water  of  the  Gulf  Stream,  just  as  the  extreme  north¬ 
eastern  coast  is  chilled  by  the  Polar  current  which  washes  it. 
The  hilly  country  behind  these  southern  Atlantic  lowlands  — 
the  western  parts  of  the  two  Carolinas,  Northern  Geoigia  and 
Alabama  —  belongs  to  the  Appalachian  system,  and  is  high 
enough  to  have  cool  and  in  parts  even  severe  winters. 

The  other  point  relates  to  the  amount  of  moisture.  The 
first  two  of  our  four  regions  enjoy  an  ample  rainfall.  So  do 
the  eastern  and  the  central  parts  of  the  Mississippi  basin. 
When,  however,  we  reach  the  centre  of  the  continent,  some 
four  hundred  miles  west  of  the  Mississippi,  the  air  grows  dry , 
and  the  scanty  showers  are  not  sufficient  for  the  needs  of 
agriculture.  It  is  only  by  the  help  of  irrigation  that  crops 
can  be  raised  all  along  the  east  foot  of  the  Rocky  Mountains 
and  in  the  valleys  of  the  fourth  region,  until  we  cross  the 
Sierra  Nevada  and  come  within  two  hundred  miles  of  the 
Pacific.  Through  great  part  of  this  Rocky  Mountain  region, 
therefore,  stock  rearing,  or  “  ranching,  ”  as  it  is  called,  takes 
the  place  of  tillage,  and  in  many  districts  there  is  not  enough 
moisture  even  to  support  grass.  Between  the  Rocky  Moun¬ 
tains  and  the  Sierra  Nevada  there  lie  vast  deserts,  the  largest 
that  which  stretches  westward  from  the  Great  Salt  Lake,1  a 


1  Similar  but  smaller  deserts  occur  in  Idaho  and  south-eastern  Oregon,  and 
also  in  the  extreme  south-west.  Part  of  the  desert  of  Southern  California  is, 
like  part  of  the  Sahara  and  the  valley  of  the  Jordan  and  the  Dead  Sea,  beneath 

the  level  of  the  ocean. 


608  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


PART  III 


desert  of  clay  and  stones  rather  than  of  sand,  bearing  only 
alkaline  plants  with  low,  prickly  shrubs,  and,  apparently 
destined  to  remain,  save  in  some  few  spots  where  brooks 
descend  from  the  mountains,1  eternally  sterile  and  solitary. 
Lofty  as  these  environing  mountains  are,  they  bear  scarce  any 
perpetual  snow,  and  no  glaciers  at  all  south  of  the  fortieth 
parallel  of  north  latitude.2  The  great  peaks  of  Colorado  lie 
little  further  south  than  the  Pennine  Alps,  which  they  almost 
equal  in  height,  but  it  is  only  in  nooks  and  hollows  turned 
away  from  the  sun  that  snow  lasts  through  the  summer,  so 

scanty  is  the  winter  snow-fall  and  so  rapidly  does  evaporation 
proceed  in  the  dry  air. 

That  same  general  north  and  south  direction  of  the  American 
mountain  ranges,  which  gives  cool  winters  to  the  Southern 
States,  cuts  off  the  east-borne  rain-clouds  from  the  Pacific 
and  condemns  one-half  or  more  of  our  fourth  region  to  aridity! 

n  the  other  hand,  north-western  California,  with  the  western 
parts  of  Oregon  and  Washington,  washed  by  the  Japan  current, 
enjoy  both  a  moderate  and  a  humid -in  some  places  very 

1U!mC  .~Cllmate?  whlch>  along  the  Pacific  coast  north  of  lati¬ 
tude  4d  ,  resembles  that  of  south-western  England. 

Reserving  for  the  moment  a  consideration  of  the  wealth- 
producing  capacities  of  the  regions  at  whose  physical  structure 
and  climate  we  have  glanced,  let  us  note  how  that  structure 
and  climate  have  affected  the  fortunes  of  the  people 

Whoever  examines  the  general  lines  of  a  nation’s  growth 
will  observe  that  its  development  has  been  guided  and  gov¬ 
erned  by  three  main  factors.  The  first  is  the  pre-existing 
character  and  habits  of  the  race  out  of  which  the  nation 
grows.  The  second  is  the  physical  aspect  of  the  land  the 
nation  is  placed  in,  and  the  third  embraces  the  international 
concomitants  of  its  formation,— that  is  to  say,  the  pressure  of 
other  nations  upon  it  and  the  external  political  circumstances 
which  have  controlled  its  movement,  checking  it  in  one  direc¬ 
tion  or  making  it  spread  in  another.  The  first  of  these  factors 
may,  m  the  case  of  the  American  people,  be  assumed  as  known, 

1  In  Central  Colorado,  when  snow  (alls,  it  does  not  melt  but  disannears  bv 

evaporation,  so  dry  is  the  air.  Sir  J.  D.  Hooker  W  fin  uL  rr-  aifapPea^s 
nals)  noted  the  same  phenomenon  in  Tibet.  “  hmalayan  Jour - 

2  There  is  a  small  glacier  on  Mount  Shasta. 


CHAP.  LVIII 


THE  HOME  OF  THE  NATION 


509 


for  their  character  and  habits  were  substantially  English.  To 
the  second  I  will  return  presently. 

The  third  factor  has  been  in  the  United  States  so  unusually 
simple  that  one  may  dismiss  it  in  a  few  sentences.  In  examin¬ 
ing  the  origin  of  such  nations  as  the  German  or  French  or  Rus¬ 
sian  or  Swiss  or  Spanish,  one  must  constantly  have  regard  to 
the  hostile  or  friendly  races  or  powers  which  acted  on  them; 
and  these  matters  are,  for  the  earlier  periods  of  European 
history,  often  obscure.  About  America  we  know  everything, 
and  what  we  know  may  be  concisely  stated.  The  territory 
now  covered  by  the  United  States  was,  from  a  political  point 
of  view,  practically  vacant  when  discovered  in  the  end  of 
the  sixteenth  century;  for  the  aborigines,  though  their  resist¬ 
ance  was  obstinate  in  places,  and  though  that  resistance  did 
much  to  form  the  character  of  the  Western  pioneers,  may 
be  left  out  of  account  as  a  historical  force.  This  territory 
was  settled  from  three  sides,  east,  south,  and  west,  and  by 
three  European  peoples.  The  Spaniards  and  French  occu¬ 
pied  points  on  the  coast  of  the  Gulf.  The  Spaniards  took 
the  shores  of  the  Pacific.  The  English  (reckoning  among  the 
English  the  cognate  Dutchmen  and  Swedes)  planted  a  series 
of  communities  along  the  Atlantic  coast.  Of  these  three 
independent  colonizations,  that  on  the  Gulf  was  feeble,  and 
passed  by  purchase  to  the  Anglo-Americans  in  1803  and  1819. 
That  on  the  Pacific  was  still  more  feeble,  and  also  passed,  but 
by  conquest,  to  the  Anglo-Americans  in  1848.  Thus  the  occu¬ 
pation  of  the  country  has  been  from  its  eastern  side  alone  (save 
that  California  received  her  immigrants  by  sea  between  1847 
and  1867),  and  the  march  of  the  people  has  been  steadily  west¬ 
ward  and  south-westward.  They  have  spread  where  they 
would.  Other  powers  have  scarcely  affected  them.  Canada, 
indeed,  bounds  them  on  the  north,  but  they  have  found  no  need 
to  overflow  into  her  narrow  strip  of  habitable  territory,  whence, 
indeed,  a  million  of  people  have  come  into  their  wealthier 
dominions.  Like  the  Spaniards  in  South  America,  like  the 
British  in  Australia,  like  the  Russians  in  Siberia,  the  Anglo- 
Americans  have  had  a  free  field;  and  we  may  pass  from  the 
purely  political  or  international  factor  in  the  development  of 
the  nation  to  consider  how  its  history  has  been  affected  by 
those  physical  conditions  which  have  been  previously  noted. 


510  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  iii 


The  English  in  America  were,  when  they  began  their  march, 
one  people,  though  divided  into  a  number  of  autonomous  com¬ 
munities;  and,  to  a  people  already  advanced  in  civilization,  the 
country  was  one  country,  as  if  destined  by  nature  to  retain 
one  and  undivided  whatever  nation  might  occupy  it. 

The  first  settlements  were  in  the  region  described  above  as 
the  Atlantic  Plain  and  Slope.  No  natural  boundary,  whether 
of  water  or  mountain  or  forest,  divided  the  various  communi¬ 
ties.  The  frontier  line  which  bounded  each  colony  was  an 
artificial  line, —  a  mere  historical  accident.  So  long  as  they 
remained  near  the  coast,  nature  opposed  no  obstacle  to  their 
co-operation  in  war,  nor  to  their  free  social  and  commercial 
intercourse  in  peace.  When,  however,  they  had  advanced 
westwards  as  far  as  the  Alleghanies,  these  mountains  barred 
their  progress,  not  so  much  in  the  North,  where  the  valley  of 
the  Hudson  and  Mohawk  gave  an  easy  path  inland,  as  in 
Pennsylvania,  Virginia,  and  Carolina.  The  dense,  tangled, 
and  often  thorny  underwood,  even  more  than  the  high  steep 
ridges,  checked  the  westward  movement  of  population,  pre¬ 
vented  the  settlers  from  spreading  out  widely,  as  the  Spaniards 
dispersed  themselves  over  Central  and  South  America,  and 
helped,  by  inducing  a  comparatively  dense  population,  to  build 
up  compact  commonwealths  on  the  Atlantic  coast.  So,  too, 
the  existence  of  this  rough  and,  for  a  long  time,  almost  impas¬ 
sable  mountain  belt,  tended  to  cut  off  those  who  had  crossed 
it  into  the  Western  wilderness  from  their  more  polished  parent 
stock,  to  throw  them  on  their  own  resources  in  the  struggle 
with  the  fierce  aborigines  of  Kentucky  and  Ohio,  and  to  give 
them  that  distinctive  character  of  frontiersmen  which  was  so 
marked  a  feature  of  American  history  during  the  first  half  of 
this  century,  and  has  left  deep  traces  on  the  Western  men  of 
to-day. 

When  population  began  to  fill  the  Mississippi  Basin  the 
essential  physical  unity  of  the  country  became  more  signifi¬ 
cant.  It  suggested  to  Jefferson,  and  it  led  Congress  to  approve, 
the  purchase  of  Louisiana  from  Napoleon,  for  those  who  had 
begun  to  occupy  the  valleys  of  the  Ohio  and  Tennessee  rivers 
felt  that  they  could  not  afford  to  be  cut  off  from  the  sea  to 
which  these  highways  of  commerce  led.  Once  the  stream  of 
migration  across  and  around  the  southern  extremity  of  the 


CHAP.  LVIII 


THE  HOME  OF  THE  NATION 


511 


Alleghanies  had  begun  to  flow  steadily,  the  settlers  spread  out 
in  all  directions  over  the  vast  plain,  like  water  over  a  marble 
floor.  The  men  of  the  Carolinas  and  Georgia  filled  Alabama, 
Mississippi,  and  Arkansas;  the  men  of  Virginia  and  Kentucky 
filled  southern  Indiana,  southern  Illinois,  and  Missouri;  the 
men  of  New  England,  New  York,  and  Ohio  filled  Michigan, 
northern  Illinois,  Wisconsin,  Iowa,  and  Minnesota.  Eiom 
the  source  to  the  mouth  of  the  Mississippi  there  was  nothing 
to  break  them  up  or  keep  them  apart.  Every  Western  State, 
except  where  it  takes  a  river  as  a  convenient  boundary,  is 
bounded  by  straight  lines,  because  every  State  is  an  artificial 
creation.  The  people  were  one,  and  the  wide  featuieless  plain 
was  also  one.  It  has  been  cut  into  those  huge  plots  we  call 
States,  not  because  there  were  physical  or  racial  differences 
requiring  divisions,  but  merely  because  political  reasons  made 
a  Federal  seem  preferable  to  a  unitary  system.  As  the  size 
of  the  plain  showed  that  the  nation  would  be  large,  so  did  the 
character  of  the  plain  promise  that  it  would  remain  united. 

-  When  presently  steamers  came  to  ply  upon  the  rivers,  each 
part  of  the  plain  was  linked  more  closely  to  the  others;  and 
when  the  network  of  railways  spread  itself  out  from  the  east 
to  the  Mississippi,  the  Alleghanies  practically  disappeared. 
They  were  no  longer  a  barrier  to  communication.  Towns 
sprang  up  in  their  valleys ;  and  now  the  three  regions,  which 
have  been  described  as  naturally  distinct,  the  Atlantic  Slope, 
the  Alleghanies,  and  the  Mississippi  Basin,  have  become, 
economically  and  socially  as  well  as  politically,  one  country, 
though  the  dwellers  in  the  wilder  parts  of  the  broad  mountain 
belt  still  lag  far  behind  their  neighbours  of  the  eastern  and 
western  lowlands. 

When,  however,  the  swelling  tide  of  emigration  reached  the 
arid  lands  at  the  eastern  base  of  the  Rocky  Mountains,  its 
course  was  for  a  time  stayed.  This  fourth  region  of  mountain 
and  desert,  lying  between  the  prairies  of  the  Mississippi  afflu¬ 
ents  and  the  Pacific  Ocean,  was,  except  its  coast  line,  an 
unknown  land  till  its  cession  by  Mexico  in  1846,  and  the  inner 
and  higher  parts  of  it  remained  unexplored  for  some  twenty 
years  longer.  As  it  was  mostly  dry  and  rugged,  theie  was 
little  to  tempt  settlers  into  it,  for  vast  tracts  of  good  land 
remained  untouched  in  the  central  Mississippi  plain.  Many 


512  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


part  hi 


- - - - - - - 

- - - - . 

years  might  have  passed  before  it  began  to  fill  up,  but  for  the 
unexpected  finding  of  gold  in  California.  This  event  at  once 
diew  in  thousands  of  settlers;  and  fresh  swarms  followed  as 
other  mines,  principally  of  silver,  began  to  be  discovered  in  the 
inland  mountain  ranges;  till  at  last  for  the  difficult  and  dan¬ 
gerous  wagon  track  there  was  substituted  a  railway,  completed 

in  1867,  over  mountains  and  through  deserts  from  the  Missouri 
to  the  Pacific. 

Had  the  Americans  of  1850  possessed  no  more  scientific 
resources  than  their  grandfathers  in  1790,  the  valleys  of  the 
Pacific  coast,  accessible  only  by  sea  round  Cape  Horn,  or 
acioss  the  Isthmus  of  Panama,  would  have  remained  isolated 
from  the  rest  of  the  country,  with  a  tendency  to  form  a  char¬ 
acter  and  habits  of  their  own,  and  possibly  disposed  to  aim  at 
political  independence.  This,  however,  the  telegraph  and  the 
railways  have  prevented.  Yet  the  Rocky  Mountains  have  not 
h.k®  ^  Alleghanies,  disappeared.  The  better  peopled  parts 
ol  California,  Oregon,  and  Washington  still  find  that  raime 
and  the  deserts  a  far  more  effective  barrier  than  are  the  lower 
and  narrower  ridges  on  the  eastern  side  of  the  continent.  The 
fourth  region  remains  a  distinct  section  of  the  United  States 
both  geographically  and  to  some  extent  in  its  social  and  indus¬ 
trial  aspects.  All  this  was  to  be  expected.  What  need  not 
have  happened,  and  might  even  have  been  thought  unlikely, 
was  the  easy  acquisition  by  the  Anglo-Americans  of  California! 
Oregon,  and  Washington,  regions  far  removed  from  the  domin¬ 
ions  which  the  Republic  already  possessed.  Had  the  competi- 
tmn  for  unappropriated  temperate  regions  been  half  as  keen 
in  1840  as  it  is  now  for  tropical  Africa  (a  far  less  attractive 
possession)  between  Germany,  France,  and  Britain,  some 
European  power  might  have  pounced  upon  these  territories. 

ley  might  then  have  become  and  remained  a  foreign  country 
to  the  United  States,  and  have  had  few  and  comparatively 
slight  relations  with  the  Mississippi  Basin.  It  is  not  nature, 
but  the  historical  accident  which  left  them  in  the  hands  of  a 
feeble  power  like  Mexico,  that  has  made  them  now,  and,  so 

far  as  can  be  foreseen,  for  a  long  future,  members  of  the  great 
federation. 

In  the  south-east  as  well  as  in  the  west  of  the  North  American 
Continent,  climate  has  been  a  prime  factor  in  determining  the 


CHAP.  LVIII 


THE  HOME  OE  THE  NATION 


513 


industrial  and  political  history  of  the  nation.  South  of  the 
thirty-fifth  parallel  of  latitude,  although  the  winters  are  cool 
enough  to  be  reinvigorative,  and  to  enable  a  race  drawn  from 
Northern  Europe  to  thrive  and  multiply,1  the  summers,  ex¬ 
cept  in  the  Alleghany  highlands,  are  too  hot  for  such  a  race 
to  sustain  hard  open-air  work,  or  to  resist  the  malaria  of  the 
marshy  coast  lands.  It  was  for  this  reason  that  soon  after  the 
settlement  of  Virginia,  and  for  nearly  two  centuries  afterwards, 
natives  of  the  tropics  were  imported  from  Africa  and  set  to 
till  the  fields.  By  their  labour  large  crops  of  tobacco,  cotton, 
rice,  and  sugar  were  raised,  and  large  profits  made ;  so  that, 
while  in  the  North-eastern  States  slavery  presently  died  out,  and 
the  negroes  themselves  declined  in  numbers,  all  the  wealth 
and  prosperity  of  the  South  came  to  depend  upon  slave  labour, 
and  slavery  became  intertwined  with  the  pecuniary  interests 
as  well  as  the  social  habits  of  the  ruling  class. 

Thus  a  peculiar  form  of  civilization  grew  up,  so  dissimilar 
from  that  of  the  northern  half  of  the  country,  that  not  even  the 
large  measure  of  State  independence  secured  under  the  Federal 
Constitution  could  enable  the  two  sections  to  live  together  under 
the  same  government.  Civil  war  followed,  and  for  a  time  it 
seemed  as  if  the  nation  were  to  be  permanently  rent  in  twain. 
Physical  differences  —  differences  of  climate,  and  of  all  those 
industrial  and  social  conditions  that  were  due  to  climate  —  were 
at  the  bottom  of  the  strife.  Yet  nature  herself  fought  for  im¬ 
perilled  unity.  Had  the  seceding  States  been  divided  from  the 
Northern  States  by  any  natural  barrier,  such  as  a  mountain 
range  running  from  east  to  west  across  the  continent,  the 
operations  of  the  invading  armies  would  have  been  incompar¬ 
ably  more  difficult.  As  it  was,  the  path  into  the  South  lay 
open,  and  the  great  south-flowing  rivers  of  the  West  helped 
the  invader.  Had  there  not  existed,  in  the  Alleghany  Moun¬ 
tains,  a  broad  belt  of  elevated  land,  thrusting  into  the  revolted 
territory  a  wedge  of  white  population  which,  as  it  did  not  own 
slaves  (for  in  the  mountains  there  were  scarce  any),  did  not 
sympathize  with  secession,  and  for  the  most  part  actively 
opposed  it,  the  chances  of  the  Southern  Confederates  would 
have  been  far  greater.  The  Alleghanies  interrupted  the  co- 

1  New  Orleans  is  in  the  same  latitude  as  Delhi,  whence  the  children  of 
Europeans  have  to  be  sent  home  in  order  that  they  may  grow  up  in  health. 


514  POLITICAL  METHODS,  PHYSICAL  INFLUENCES  part  hi 


operation  of  tlieir  eastern  and  western  armies,  and  furnished 
recruits  as  well  as  adherents  to  the  North;  and  it  need  hardly 
be  added  that  the  climatic  conditions  of  the  South  made  its 
white  population  so  much  smaller,  and  on  the  whole  so  much 
poorer,  than  that  of  the  North,  that  exhaustion  came  far 
sooner.  He  who  sees  the  South  even  to-day,  when  it  has  in 
many  places  gained  vastly  since  the  war,  is  surprised  not  that 
it  succumbed,  but  that  it  was  able  so  long  to  resist. 

With  the  extinction  of  slavery,  the  political  unity  of  the 
country  was  secured,  and  the  purpose  of  nature  to  make  it  the 
domain  of  a  single  people  might  seem  to  have  been  fulfilled. 
Before  we  inquire  whether  this  result  will  be  a  permanent  one, 
so  far  as  physical  causes  are  concerned,  another  set  of  physical 
conditions  deserves  to  be  considered,  those  conditions,  namely, 
of  earth  and  sky,  which  determine  the  abundance  of  useful 
products,  that  is  to  say,  of  wealth,  and  therethrough,  of  popu¬ 
lation  also. 

The  chief  natural  sources  of  wealth  are  fertile  soils,  mineral 
deposits,  and  standing  timber.1  Of  these  three  the  last  is  now 
practically  confined  to  three  districts, —  the  hills  of  Maine, 
the  Alleghanies,  and  the  maritime  ranges  of  the  Pacific  coast, 
especially  in  Washington.  Elsewhere,  though  there  is  a  great 
deal  of  wooded  country,  the  cutting  and  exporting  of  timber, 
or,  as  it  is  called  beyond  the  Atlantic,  “  lumber,  ”  is  not  (except 
perhaps  in  Michigan)  an  important  industry  which  employs  or 
enriches  many  persons.  It  is,  moreover,  one  which  constantly 
declines,  for  the  forests  perish  daily  before  fires  and  the  axe 
far  more  swiftly  than  nature  can  renew  them. 

As  no  nation  possesses  so  large  an  area  of  land  available  for 
the  sustenance  of  man,  so  also  none  of  the  greatest  nations  can 
boast  that  out  of  its  whole  domain,  so  large  a  proportion  of 
land  is  fit  for  tillage  or  for  stock-rearing.  If  we  except  the 
stony  parts  of  New  England  and  eastern  New  York,  where 
the  soil  is  thinly  spread  over  crystalline  rocks,  and  the  sandy 
districts  which  cover  a  considerable  area  in  Virginia  and  North 

1 1  omit  the  fisheries,  because  their  commercial  importance  is  confined  to 
three  districts,  the  coasts  of  Maine  and  Massachusetts,  the  rivers  of  Wash¬ 
ington  and  parts  of  Alaska,  with  the  seal-bearing  Pribyloff  Isles.  The  sea 
fisheries  of  the  Pacific  coast  (Washington,  Oregon,  and  California)  are  still 
imperfectly  developed. 


CHAP.  J.VIII 


THE  HOME  OF  THE  NATION 


515 


Carolina,  nearly  the  whole  of  the  more  level  tracts  between 
the  Atlantic  and  the  Rocky  Mountains  is  good  agricultural 
land,  while  in  some  districts,  especially  on  the  upper  Missis¬ 
sippi,  this  land  has  proved  remarkably  rich.  Which  soils  will 
in  the  long  run  turn  out  most  fertile,  cannot  yet  be  predicted. 
The  prairie  lands  of  the  North-west  have  needed  least  labour 
and  have  given  the  largest  returns  to  their  first  cultivators ; 
but  it  is  doubtful  whether  this  superiority  will  be  maintained 
when  protracted  tillage  has  made  artificial  aids  necessary,  as 
has  already  happened  in  not  a  few  places.  Some  of  the  soils 
in  the  Eastern  and  Southern  States  are  said  to  improve  with 
cultivation,  being  rich  in  mineral  constituents.  Not  less  rich 
than  the  Mississippi  prairies,  but  far  smaller  in  area,  are  the 
arable  tracts  of  the  Pacific  Slope,  where,  in  Washington  espe¬ 
cially,  the  loam  formed  by  the  decomposition  of  the  trappean 
rocks  is  eminently  productive.  In  the  inner  parts  of  the  Rocky 
Mountain  region  lie  many  plains  and  valleys  of  great  natural 
fertility,  but  dependent,  so  deficient  is  the  rainfall,  upon  an 
artificial  supply  of  water.  Were  irrigation  works  constructed 
to  bring  water,  or  artesian  wells  successfully  sunk,  large  areas 
might  be  cultivated;  but  land  has  not  yet  become  scarce  enough 
to  make  the  execution  of  great  works  remunerative,  and  in 
many  regions  the  sources  of  water  supply  are  distant  or  uncer¬ 
tain.  The  Mormon  settlements  on  the  east  and  to  the  south 
of  Great  Salt  Lake  are  the  only  considerable  tract  as  yet  thus 
reclaimed;  there  are,  however,  others  from  which  an  equally 
patient  industry  may  draw  like  results. 

In  estimating  mineral  resources,  it  is  well  to  distinguish 
between  mines  of  gold,  silver,  copper,  and  lead  on  the  one 
hand,  and  those  of  coal  and  iron  on  the  other.  The  former 
are  numerous,  and  have  given  vast  wealth  to  a  few  lucky 
speculators.  In  some  parts  of  the  Rockies  and  the  ranges 
linking  them  to  the  Sierra  Nevada,  the  traveller  saw,  even 
twelve  or  fifteen  years  ago,  silver  mining  claims  staked  out 
on  every  hill.  But  these  mines  are  uncertain  in  their  yield; 
and  the  value  of  silver  is  subject  to  great  fluctuations.  Coal 
and  iron  present  a  surer,  if  less  glittering  gain,  and  they  are 
needed  for  the  support  of  many  important  industries.  Now, 
while  gold,  silver,  and  lead  are  chiefly  found  in  the  Rocky 
Mountain  and  Sierra  Nevada  system,  copper  mainly  in  the 


516  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


PART  III 


West  and  on  Lake  Superior,  the  greatest  coal  and  iron  dis¬ 
tricts  1  are  in  Pennsylvania  and  Ohio,  and  along  the  line  of 
the  Alleghanies  southwards  into  Alabama.  It  is  chiefly  in 
the  neighbourhood  of  coal  deposits  that  manufactures  develop, 
yet  not  exclusively,  for  the  water-power  available  along  the 
foot  of  the  New  England  hills  led  to  the  establishment  of 
many  factories  there,  which  still  remain  and  flourish  under 
changed  conditions,  receiving  their  coal,  however,  largely  by 
sea  from  Nova  Scotia. 

What  has  been  the  result  of  these  conditions,  and  what  do 
they  promise? 

First :  An  agricultural  population  in  the  Mississippi  Basin 
already  great,  and  capable  of  reaching  dimensions  from  which 
imagination  recoils,  for  though  the  number  of  persons  to  the 
square  mile  will  be  less  than  in  Bengal  or  Egypt,  where  the 
peasants’  standard  of  comfort  is  incomparably  lower  than  that 
of  the  American  farmer,  it  may  be  as  dense  as  in  the  most 
prosperous  agricultural  districts  of  Europe. 

Secondly:  An  industrial  population  now  almost  equalling 
the  agricultural,2  concentrated  chiefly  in  the  North-eastern 
States  and  along  the  skirts  of  the  Alleghanies,  and  in  large 
cities  springing  up  here  and  there  where  (as  at  Chicago,  Cleve¬ 
land,  Minneapolis,  and  St.  Louis)  commerce  plants  its  centres 
of  exchange  and  distribution.  This  industrial  population 
grows  far  more  swiftly  than  the  agricultural,  and  the  aggre¬ 
gate  value  of  manufactured  products  increases  faster  from 
census  to  census  than  does  that  of  the  products  of  the  soil. 

Thirdly :  A  similar  but  very  much  smaller  agricultural  and 
industrial  population  along  the  Pacific,  five-sixths  of  it  within 
eighty  miles  of  the  coast. 

Fourthly:  Between  the  Mississippi  Basin  and  this  well- 
peopled  Pacific  shore  a  wide  and  very  thinly  inhabited  tract, 
sometimes  quite  arid,  and  therefore  a  wilderness,  sometimes 
showing  grass-bearing  hills  with  sheep  or  cattle,  and  a  few 

1  There  are  other  smaller  coal  districts,  including  one  in  Washington,  on 
the  shores  of  Puget  Sound.  Nor  ought  the  immensely  productive  mineral  oil 
districts,  especially  those  of  Pennsylvania  and  Ohio,  to  pass  unnoticed. 

2  The  population  inhabiting  cities  of  8000  people  and  upwards  was  in  1890 
still  only  29T2  per  cent  of  the  total  population  (though  in  the  North  Atlantic 
division  it  reached  51  per  cent).  But  a  large  part  of  those  engaged  in  mining 
or  manufactures  may  be  found  in  places  below  that  limit  of  population. 


CIIAP.  LVIII 


THE  HOME  OF  THE  NATION 


517 


ranchmen  upon  the  hill-slopes,  more  rarely  valleys  which 
irrigation  has  taught  to  wave  with  crops.  And  here  and  there 
through  this  tract,  redeeming  it  from  solitude,  there  will  lie 
scattered  mining  towns,  many  of  them  quick  to  rise  and  almost 
as  quick  to  vanish,  but  others  destined,  if  they  occupy  the 
centre  of  a  mining  district,  to  maintain  a  permanent  impor¬ 
tance. 

Thus  the  enormous  preponderance  of  population  will  be  on 
the  eastern  side  of  the  continental  watershed.  It  was  so  in 
1890, —  56,000,000  of  people  against  6,000,000, —  it  is  likely 
to  remain  so,  though  the  disparity  may  be  somewhat  less 
marked.  The  face  of  the  nation  will  be  turned  eastward;  and, 
to  borrow  a  phrase  of  Lo  well’s,  the  front  door  of  their  house 
will  open  upon  the  Atlantic,  the  back  door  upon  the  Pacific. 
Faint  and  few,  so  far  as  we  can  now  predict  (though  far  greater 
than  at  this  moment),  will  be  the  relations  maintained  with 
Eastern  Asia  and  Australia  across  the  vast  expanse  of  that 
ocean  compared  with  those  that  must  exist  with  Europe,  to 
which  not  only  literature  and  social  interests,  but  commerce 
also,  will  bind  America  by  ties  growing  always  closer  and  more 
numerous. 

That  the  inhabitants  of  this  territory  will  remain  one  nation 
is  the  conclusion  to  which,  as  already  observed,  the  geography 
of  the  continent  points.  Considerations  of  an  industrial  and 
commercial  kind  enforce  this  forecast.  The  United  States, 
with  nearly  all  the  vegetable  staples  of  the  temperate  zone, 
and  many  that  may  be  called  subtropical,  has  within  its  bor¬ 
ders  a  greater  variety  of  products,  mineral  as  well  as  vegetable, 
than  any  other  country,  and  therefore  a  wider  basis  for  internal 
interchange  of  commodities.  Free  Trade  with  other  countries, 
desirable  as  it  may  be,  is  of  less  consequence  where  a  vast 
home  trade,  stretching  across  a  whole  continent,  has  its  free¬ 
dom  secured  by  the  Constitution.  The  advantages  of  such 
freedom  to  the  wheat  and  maize  growers  of  the  North-west,  to 
the  cotton  and  rice  and  sugar  planters  of  the  Gulf  States,  to 
the  orange  growers  of  Florida,  and  the  vine  growers  of  Cali¬ 
fornia,  to  the  cattle  men  of  the  West  and  the  horse  breeders 
of  Kentucky  and  Idaho,  to  the  lumbermen  of  Maine  and 
Washington,  to  the  coal  and  iron  men  of  Pennsylvania  and 
the  Alleghany  States,  to  the  factories  of  New  England,  both 


518  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


PART  III 


employers  and  workmen,  as  well  as  to  the  consuming  popula¬ 
tions  of  the  great  cities,  are  so  obvious  as  to  constitute  an 
immense  security  against  separatist  tendencies.  Such  advan¬ 
tages,  coupled  with  the  social  and  political  forces  discussed  in 
other  chapters,  are  now  amply  sufficient  to  hold  the  Pacific 
States  to  the  Union,  despite  the  obstacles  which  nature  has 
interposed.  In  earlier  stages  of  society  these  obstacles  might 
well  have  proved  insurmountable.  Had  communication  been 
as  difficult  in  the  middle  of  the  nineteenth  century  as  it  was 
in  the  sixteenth,  the  inhabitants  of  the  Pacific  coast  might 
have  formed  a  distinct  nationality  and  grown  into  independent 
States;  while  in  the  inner  recesses  of  the  wide  mountain  land 
other  and  probably  smaller  communities  would  have  sprung 
up,  less  advanced  in  culture,  and  each  developing  a  tvne  of 
its  own. 

But  the  age  we  live  in  favours  aggregation.  The  assimi¬ 
lative  power  of  language,  institutions,  and  ideas,  as  well 
as  of  economic  and  industrial  forces,  is  enormous,  espe¬ 
cially  when  this  influence  proceeds  from  so  vast  a  body  as  that 
of  the  American  people  east  of  the  Rocky  Mountains,  com¬ 
pared  to  which  the  dwellers  on  the  western  slope  are  still  but 
few.  The  failure  of  the  Mormon  attempt  to  found  a  State  is 
an  instance  to  show  how  vain  is  the  effort  to  escape  from  these 
influences;  for  even  without  an  exertion  of  the  military  power 
of  the  United  States,  they  must  soon,  by  the  natural  process 
of  colonization,  have  been  absorbed  into  its  mass.  There  is, 
accordingly,  no  such  reason  to  expect  detachment  now  as  there 
might  have  been  had  neither  railroads  nor  telegraphs  existed, 
and  California  been  accessible  only  round  Cape  Horn  or  across 
the  Isthmus.  Now  five  great  trunk  lines  cross  the  continent; 
and  though  much  of  the  territory  which  lies  between  the  popu¬ 
lous  margin  of  the  Pacific  and  the  cities  of  Colorado,  Nebraska, 
and  Dakota  is  and  must  remain  wild  and  barren,  many  settle¬ 
ments,  mining,  pastoral,  and  even  agricultural,  have  begun  to 
spring  up  in  this  intervening  space,  and  the  unpeopled  gaps 
are  narrowing  day  by  day.  Especially  along  the  line  of  the 
more  northerly  railroads,  population,  though  it  must  always  be 
sparse,  may  become  practically  continuous.  A  close  observer 
can,  however,  detect  some  differences  in  character  between 
Californians  and  the  Americans  of  the  Eastern  and  Mississippi 


CHAP.  LVIII 


THE  HOME  OF  THE  NATION 


519 


States;  and  it  is  possible,  though  I  think  far  from  probable, 
that  when  immigration  has  ceased,  and  the  Pacific  coasts  and 
valleys  are  peopled  by  the  great-grandchildren  of  Californians 
and  Oregonians,  this  difference  may  become  more  marked,  and 
a  Pacific  variety  of  the  American  species  be  discernible. 

We  have  so  far  been  proceeding  on  the  assumption  that  the 
inhabitants  of  the  United  States  will  be  in  the  future  what 
they  have  been  during  the  last  three  generations.  It  must, 
however,  be  admitted  that  two  agents  are  at  work  which  may 
create  differences  between  those  who  occupy  different  parts  of 
the  country  greater  than  any  which  now  exist.  One  of  these 
is  immigration  from  Europe,  whereof  I  will  only  say  that 
there  is  as  yet  little  sign  that  it  will  substantially  alter  any 
section  of  the  people,  so  strong  is  the  assimilative  power  which 
the  existing  population  exerts  on  the  new-comers,  and  that  it 
may  probably,  within  the  next  few  decades,  begin  to  decline. 
Large  as  it  has  been,  it  has  not  yet  affected  the  English  spoken 
in  any  part  of  the  country;  and  one  may  indeed  note  that 
though  there  are  marked  differences  of  pronunciation  there 
are,  as  respects  the  words,  few  dialectic  variations  over  the 
vast  area  of  the  Union.  The  other  is  climate.  Now  climatic 
influences  seem  to  work  but  slowly  on  a  national  type  already 
moulded  and,  so  to  speak,  hammered  into  a  definite  shape  by 
many  centuries.  The  English  race  is,  after  all,  a  very  recent 
arrival  in  America.  Few,  indeed,  of  the  progenitors  of  the 
present  dwellers  in  the  South  have  been  settled  there  for  two 
centuries;  that  is  to  say,  the  present  generation  is  at  most 
only  the  sixth  on  which  the  climate  has  had  time  to  tell.  It 
is  therefore  quite  possible  that,  when  five  or  six  more  cen¬ 
turies  have  passed,  the  lowlanders  of  the  Gulf  States  may, 
under  the  enervating  heat  and  malarial  fevers  of  their  sum¬ 
mers,  together  with  the  desistence  from  physical  exertion 
which  that  heat  compels,  have  become  different  from  what 
they  now  are;  though  the  comparative  coolness  and  conse¬ 
quent  reinvigorative  powers  of  the  winters,  and  the  infiltration 
into  their  population  of  new-comers  from  the  hardier  North, 
will  be  influences  working  in  the  contrary  direction.  The 
moral  and  social  sentiments  predominant  in  a  nation,  and  the 
atmosphere  of  ideas  it  breathes,  tend,  as  education  is  more 
and  more  diffused,  and  the  movements  of  travel  to  and  fro 


520  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


PART  III 


become  constantly  brisker,  to  be  more  and  more  powerful 
forces  in  producing  similarity  of  character,  and  similarity  of 
character  tells  on  the  man’s  whole  life  and  constitution. 

A  like  question  has  been  raised  regarding  the  whole  people 
of  the  United  States  as  compared  with  the  European  stocks 
whence  they  sprung.  The  climate  of  their  new  country  is  one 
of  greater  extremes  of  heat  and  cold,  and  its  air  more  generally 
stimulative,  than  are  the  climate  and  air  of  the  British  Isles, 
or  even  of  Germany  and  Scandinavia.  That  this  climate 
should,  given  sufficient  time,  modify  the  physical  type  of  a 
race,  and  therewith  even  its  intellectual  type,  seems  only 
natural.  But  the  English  race  has  not  hitherto  degenerated 
physically  in  its  new  home;  in  some  districts  it  may  even 
seem  to  have  improved.  The  tables  of  life-insurance  com¬ 
panies  show  that  the  average  of  life  is  as  long  as  in  Western 
Europe.  People  walk  less  and  climb  mountains  less  than  they 
do  in  England,  but  quite  as  much  physical  strength  and  agility 
are  put  forth  in  games,  and  these  are  pursued  with  as  much 
ardour.  It  was  noted  in  the  War  of  Secession  that  the  per¬ 
centage  of  recoveries  from  wounds  was  larger  than  in  European 
wars,  and  the  soldiers  in  both  armies  stood  well  the  test  of  the 
long  marches  through  rough  and  sometimes  unhealthy  regions 
to  which  they  were  exposed,  those,  perhaps,  faring  best  who 
were  of  the  purest  American  stock,  i.e.  who  came  from  the 
districts  least  affected  by  recent  immigration.  It  has,  how- 
ever,  alieady  been  remarked  that  the  time  during  which  physi¬ 
cal  conditions  have  been  able  to  work  on  the  Anglo-American 
race  is  much  too  short  to  enable  any  but  provisional  conclu¬ 
sions  to  be  foimed;  and  for  the  same  reason  it  is  premature 
to  speculate  upon  the  changes  in  character  and  intellectual 
tastes  which  either  the  natural  scenery  of  the  American  Con¬ 
tinent,  and  in  particular  its  vast  central  plain,  or  the  occu¬ 
pations  and  economic  environment  of  the  people,  with  their 
increasing  tendency  to  prefer  urban  to  rural  life,  may  in  the 
course  of  ages  produce.  The  science  of  ethnographic  sociology 
is  still  only  in  its  infancy,  and  the  working  of  the  causes  it 
examines  is  so  subtle  that  centuries  of  experience  may  be 
needed  before  it  becomes  possible  to  determine  definite  laws 
of  national  growth. 

Let  us  sum  up  the  points  in  which  physical  conditions  seem 


CHAP.  LVIII 


THE  HOME  OF  THE  NATION 


521 


to  have  influenced  the  development  of  the  American  people, 
by  trying  to  give  a  short  answer  to  the  question,  What  kind 
of  a  home  has  Nature  given  to  the  nation? 

She  has  furnished  it  with  resources  for  production,  that  is, 
with  potential  wealth,  ampler  and  more  varied  than  can  be 
found  in  any  other  country,  —  an  immense  area  of  fertile  soil, 
sunshine,  and  moisture  fit  for  all  the  growths  of  the  temperate, 
and  even  a  few  of  the  torrid  zone,  a  store  of  minerals  so  large 
as  to  seem  inexhaustible. 

She  has  given  it  a  climate  in  which  the  foremost  races  of 
mankind  can  thrive  and  (save  in  a  few  districts)  labour,  an 
air  in  most  regions  not  only  salubrious,  but  more  stimulating 
than  that  of  their  ancient  European  seats. 

She  has  made  communication  easy  by  huge  natural  water¬ 
courses,  and  by  the  general  openness  and  smoothness  of  so 
much  of  the  continent  as  lies  east  of  the  Rocky  Mountains. 

In  laying  out  a  vast  central  and  almost  unbroken  plain,  she 
has  destined  the  largest  and  richest  region  of  the  country  to 
be  the  home  of  one  nation,  and  one  only.  That  the  lands 
which  lie  east  of  this  region  between  the  Alleghanies  and  the 
Atlantic,  and  those  which  lie  west  of  it  between  the  Rocky 
Mountains  and  the  Pacific,  are  also  occupied  by  that  one  nation 
is  due  to  the  fact  that  before  the  colonization  of  the  central 
region  had  gone  far,  means  of  communication  were  invented 
which  made  the  Alleghanies  cease  to  be  a  barrier,  and  that 
before  the  Pacific  coast  had  been  thickly  settled,  the  rest  of 
the  country  was  already  so  great  in  population,  wealth,  and 
power  that  its  attraction  was  as  irresistible  as  the  moon  finds 
the  attraction  of  the  earth  to  be. 

Severing  its  home  by  a  wide  ocean  from  the  old  world  of 
Europe  on  the  east,  and  by  a  still  wider  one  from  the  half  old, 
half  new,  world  of  Asia  and  Australasia  on  the  west,  she  has 
made  the  nation  sovereign  of  its  own  fortunes.  It  need  fear 
no  attacks  nor  even  any  pressure  from  the  military  and  naval 
powers  of  the  eastern  hemisphere,  and  it  has  little  temptation 
to  dissipate  its  strength  in  contests  with  them.  It  has  no 
doubt  a  strong  neighbour  on  the  north,  but  a  friendly  one, 
linked  by  many  ties  of  interest  as  well  as  kindred,  and  not 
likely  ever  to  become  threatening.  It  had  on  the  south  neigh¬ 
bours  who  might  have  been  dangerous,  but  fortune  favoured  it 


522  POLITICAL  METHODS,  PHYSICAL  INFLUENCES 


PART  III 


by  making  one  of  them  hopelessly  weak,  and  obliging  the  other, 
strong  as  she  was,  to  quit  possession  at  a  critical  moment. 
Thus  is  it  left  to  itself  as  no  great  State  has  ever  yet  been  in 
the  world;  thus  its  citizens  enjoy  an  opportunity  never  before 
granted  to  a  nation,  of  making  their  country  what  they  will 
to  have  it. 

These  are  unequalled  advantages.  They  contain  the  ele¬ 
ments  of  immense  defensive  strength,  of  immense  material 
prosperity.  They  disclose  an  unrivalled  field  for  the  develop¬ 
ment  of  an  industrial  civilization.  Nevertheless,  students  of 
history,  knowing  how  unpredictable  is  the  action  of  what  we 
call  moral  causes,  that  is  to  say,  of  emotional  and  intellectual 
influences  as  contrasted  with  those  rooted  in  physical  and 
economic  facts,  will  not  venture  to  base  upon  the  most  careful 
survey  of  the  physical  conditions  of  America  any  bolder 
prophecy  than  this,  that  not  only  will  the  State  be  powerful 
and  the  wealth  of  its  citizens  prodigious,  but  that  the  nation 
will  probably  remain  one  in  its  government,  and  still  more 
probably  one  in  speech,  in  character,  and  in  ideas. 


CONSTITUTION  OF  THE  UNITED  STATES 


We,  the  people  of  the  United  States,  in  order  to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquillity,  provide  for  the 
common  defence,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. 

ARTICLE  I 

Section  1.  All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Representatives. 

Sec.  2.  The  House  of  Representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  States,  and  the 
electors  in  each  State  shall  have  the  qualifications  requisite  for  electors  of 
the  most  numerous  branch  of  the  State  legislature. 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the 
age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

[Representatives  and  direct  taxes  shall  be  apportioned  among  the  sev¬ 
eral  States  which  may  be  included  within  this  Union,  according  to  their 
respective  numbers,  which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  service  for  a  term  of 
years,  and  excluding  Indians  not  taxed,  three-fifths  of  all  other  persons.]  1 
The  actual  enumeration  shall  be  made  within  three  years  after  the  first 
meeting  of  the  Congress  of  the  United  States,  and  within  every  subse¬ 
quent  term  of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  Representatives  shall  not  exceed  one  for  every  thirty  thousand, 
but  each  State  shall  have  at  least  one  Representative ;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled 
to  choose  three,  Massachusetts  eight,  Rhode  Island  and  Providence  Plan¬ 
tations  one,  Connecticut  five,  New  York  six,  New  Jersey  four,  Pennsyl¬ 
vania  eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North  Carolina 
five,  South  Carolina  five,  and  Georgia  three. 

1  The  clause  included  in  brackets  is  amended  by  the  XIVth  Amendment, 
2d  section. 


523 


524 


APPENDIX 


When  vacancies  happen  in  the  representation  from  any  State,  the  ex¬ 
ecutive  authority  thereof  shall  issue  writs  of  election  to  fill  such  vacan¬ 
cies. 

The  House  of  Representatives  shall  choose  their  speaker  and  other 
officers  ;  and  shall  have  the  sole  power  of  impeachment. 

Sec.  3.  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  legislature  thereof,  for  six  years  ; 
and  each  Senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of  the  first 
election,  they  shall  be  divided  as  equally  as  may  be  into  three  classes. 
The  seats  of  the  Senators  of  the  first  class  shall  be  vacated  at  the  expira¬ 
tion  of  the  second  year,  of  the  second  class  at  the  expiration  of  the  fourth 
year,  and  of  the  third  class  at  the  expiration  of  the  sixth  year,  so  that 
one-third  may  be  chosen  every  second  year  ;  and  if  vacancies  happen  by 
resignation,  or  otherwise,  during  the  recess  of  the  legislature  of  any  State, 
the  executive  thereof  may  make  temporary  appointments  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

The  Vice-President  of  the  United  States  shall  be  President  of  the  Sen¬ 
ate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  Senate  shall  choose  their  othfcr  officers,  and  also  a  president  pro 
tempore ,  in  the  absence  of  the  Vice-President,  or  when  he  shall  exercise 
the  office  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments.  When 
sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation.  When  the 
President  of  the  United  States  is  tried,  the  Chief  Justice  shall  preside; 
and  no  person  shall  be  convicted  without  the  concurrence  of  two-thirds  of 
the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  farther  than  to 
removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office  of 
honour,  trust,  or  profit  under  the  United  States  ;  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment  according  to  law. 

Sec.  4.  The  times,  places,  and  manner  of  holding  elections  for  Sena¬ 
tors  and  Representatives  shall  be  prescribed  in  each  State  by  the  legisla¬ 
ture  thereof ;  but  the  Congress  may  at  any  time  by  law  make  or  alter 
such  regulations,  except  as  to  the  places  of  choosing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall  by 
law  appoint  a  different  day. 

Sec.  5.  Each  house  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members,  and  a  majority  of  each  shall  constitute 
a  quorum  to  do  business  ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of  absent  members, 
in  such  manner,  and  under  such  penalties  as  each  house  may  provide. 


CONSTITUTION  OF  THE  UNITED  STATES 


525 


Each  house  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behaviour,  and,  with  the  concurrence  of  two- 
tliirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  parts  as  may  in  their  judgment 
require  secrecy  ;  and  the  yeas  and  nays  of  the  members  of  either  house 
on  any  question  shall,  at  the  desire  of  one-fifth  of  those  present  be 
entered  on  the  journal. 

Neither  house,  during  the  session  of  Congress,  shall,  without  the  con¬ 
sent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  houses  shall  be  sitting. 

Sec.  6.  The  Senators  and  Representatives  shall  receive  a  compensa¬ 
tion  for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the  Treas¬ 
ury  of  the  United  States.  They  shall  in  all  cases,  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from  arrest  during  their  attendance 
at  the  session  of  their  respective  houses,  and  in  going  to  and  returning 
from  the  same  ;  and  for  any  speech  or  debate  in  either  house  they  shall 
not  be  questioned  in  any  other  place. 

No  Senator  or  Representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time  ;  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house  during  his 
continuance  in  office. 

Sec.  7.  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives  ,  but  the  Senate  may  propose  or  concur  with  amend¬ 
ments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate  shall,  before  it  become  a  law,  be  presented  to  the  President 
of  the  United  States ;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall 
return  it,  with  his  objections,  to  that  house  in  which  it  shall  have  origi¬ 
nated,  who  shall  enter  the  objections  at  large  on  their  journal,  and  proceed 
to  reconsider  it.  If  after  such  reconsideration  two-thirds  of  that  house 
shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the  objections, 
to  the  other  house,  by  which  it  shall  likewise  be  reconsidered,  and  if 
approved  by  two-thirds  of  that  house,  it  shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays,  and 
the  names  of  the  persons  voting  for  and  against  the  bill  shall  be  entered 
on  the  journal  of  each  house  respectively.  If  any  bill  shall  not  be 
returned  by  the  President  within  ten  days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  same  shall  be  a  law,  in  like  manner 
as  if  he  had  signed  it,  unless  the  Congress  by  their  adjournment  prevent 
its  return,  in  which  case  it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the  Sen¬ 
ate  and  House  of  Representatives  may  be  necessary  (except  on  a  ques¬ 
tion  of  adjournment)  shall  be  presented  to  the  President  of  the  United 
States ;  and  before  the  same  shall  take  effect  shall  be  approved  by  him, 
or  being  disapproved  by  him,  shall  be  repassed  by  two-thirds  of  the 


526 


APPENDIX 


Senate  and  House  of  Representatives,  according  to  the  rules  and  limita¬ 
tions  prescribed  in  the  case  of  a  bill. 

Sec.  8.  The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  to  pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States ;  but  all  duties,  imposts,  and 
excises  shall  be  uniform  throughout  the  United  States  ; 

To  borrow  money  on  the  credit  of  the  United  States  ; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes  ; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies  throughout  the  United  States  ; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures  ; 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States ; 

To  establish  post-offices  and  post-roads. 

To  promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their  respec¬ 
tive  writings  and  discoveries ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high  seas, 
and  offences  against  the  law  of  nations. 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water ; 

To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years  ; 

To  provide  and  maintain  a  navy  ; 

To  make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces  ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions  ; 

To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  States  respectively  the  appointment  of  the 
officers  and  the  authority  of  training  the  militia  according  to  the  disci¬ 
pline  prescribed  by  Congress ; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such  dis¬ 
trict  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  particular 
States,  and  the  acceptance  of  Congress,  become  the  seat  of  the  Govern¬ 
ment  of  the  United  States,  and  to  exercise  like  authority  over  all  places 
purchased  by  the  consent  of  the  legislature  of  the  State  in  which  the 
same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dockyards, 
and  other  needful  buildings  ;  and 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by  this  Con¬ 
stitution  in  the  Government  of  the  United  States,  or  in  any  department 
or  officer  thereof. 

Sec.  9.  The  migration  or  importation  of  such  persons  as  any  of  the 


527 


CONSTITUTION  OF  THE  UNITED  STATES 


States  now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by 
the  Congress  prior  to  the  year  one  thousand  eight  hundred  and  eight  but 

a  tax  or  duty  may  be  imposed  on  such  importation,  not  exceeding  ten 
dollars  for  each  person.  & 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  un- 
quire^f611  m  °aSeS  °f  rebellion  or  invasion  the  public  safety  may  re- 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation,  or  other  direct  tax,  shall  be  laid,  unless  in  proportion 
to  the  census  or  enumeration  hereinbefore  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State 

No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue 
to  the  ports  of  one  State  over  those  of  another ;  nor  shall  vessels  bound 

other  fr°m’  °ne  SUte  be  °bliged  t0  enter’  clear’  or  Pay  duties  in  an- 

No  money  shall  be  drawn  from  the  Treasury,  but  in  consequence  of 
appropriations  made  by  law ;  and  a  regular  statement  and  account  of  the 

time1  t(T time  expendltures  of  a11  Public  money  shall  be  published  from 

No  title  of  nobility  shall  be  granted  by  the  United  States  ;  and  no  per¬ 
son  holding  any  office  of  profit  or  trust  under  them  shall,  without  the  con¬ 
sent  of  the  Congress,  accept  of  any  present,  emolument,  office,  or  title 
ot  any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Sec.  10  No  state  shall  enter  into  any  treaty,  alliance,  or  confedera- 
lon;  grant  letters  of  marque  and  reprisal;  coin  money;  emit  bills  of 
credit ;  make  anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts  ;  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,  or  grant  any  title  of  nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  laws  ;  and  the  net  produce  of  all  duties  and 
imposts,  laid  by  any  State  on  imports  or  exports,  shall  be  for  the  use  of 
the  Treasury  of  the  United  States  ;  and  all  such  laws  shall  be  subject  to 
the  revision  and  control  of  the  Congress. 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  ton¬ 
nage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power  or  en¬ 
gage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as  will 
not  admit  of  delay. 


ARTICLE  II 

TT  S“T'°"  L  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office  during  the  term  of 

four  years,  and  together  with  the  Vice-President,  chosen  for  the  same 
term,  be  elected  as  follows  : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors,  equal  to  the  whole  number  of  Senators  and 
Representatives  to  which  the  State  may  be  entitled  in  the  Congress  ;  but 


528 


APPENDIX 


no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States,  shall  be  appointed  an  elector. 

[The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot 
for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves.  And  they  shall  make  a  list  of  all  the  per¬ 
sons  voted  for,  and  of  the  number  of  votes  for  each  ;  which  list  they  shall 
sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  Government  of  the 
United  States  directed  to  the  President  of  the  Senate.  The  President  of 
the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Represen¬ 
tatives,  open  all  the  certificates,  and  the  votes  shall  then  be  counted. 
The  person  having  the  greatest  number  of  votes  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed  • 
and  if  there  be  more  than  one  who  have  such  majority  and  have  an  equal 
number  of  votes,  then  the  House  of  Representatives  shall  immediately 
choose  by  ballot  one  of  them  for  President ;  and  if  no  person  have  a 
majority,  then  from  the  five  highest  on  the  list  the  said  House  shall  in  like 
manner  choose  the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  States,  the  representation  from  each  State  having  one 
vote  \  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  In  every  case,  after  the  choice  of  the  President, 
the  person  having  the  greatest  number  of  votes  of  the  electors  shall  be 
the  Vice-President ;  but  if  there  should  remain  two  or  more  who  have 
equal  votes,  the  Senate  shall  choose  from  them,  by  ballot,  the  Vice- 
President.]1 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and 
the  day  on  which  they  shall  give  their  votes  ;  which  day  shall  be  the 
same  throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible  to 
the  office  of  President ;  neither  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and  been  four¬ 
teen  years  a  resident  within  the  United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice-President,  and  the  Congress 
may  by  law  provide  for  the  case  of  removal,  death,  resignation,  or  ina¬ 
bility,  both  of  the  President  and  Vice-President,  declaring  what  officer 
shall  then  act  as  President,  and  such  officer  shall  act  accordingly  until 
the  disability  be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  services  a  compen¬ 
sation,  which  shall  neither  be  increased  nor  diminished  during  the  period 
for  which  he  shall  have  been  elected,  and  he  shall  not  receive  within  that 
period  any  other  emolument  from  the  United  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  follow¬ 
ing  oath  or  affirmation : 

1  This  clause  in  brackets  has  been  superseded  by  the  Xllth  Amendment. 


CONSTITUTION  OF  THE  UNITED  STATES 


529 


“  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the  office 
of  President  of  the  United  States,  and  will,  to  the  best  of  my  ability,  pre¬ 
serve,  protect,  and  defend  the  Constitution  of  the  United  States.” 

Sec.  2.  The  President  shall  be  commander- in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States,  when 
called  into  the  actual  service  of  the  United  States  ;  he  may  require  the 
opinion,  in  writing,  of  the  principal  officer  in  each  of  the  executive  depart¬ 
ments,  upon  any  subject  relating  to  the  duties  of  their  respective  offices, 
and  he  shall  have  power  to  grant  reprieves  and  pardons  for  offences 
against  the  United  States,  except  in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  two-thirds  of  the  Senators  present  concur ;  and 
he  shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers  and  consuls,  judges  of 
the  Supreme  Court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  law  ;  but  the  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers,  as  they  think  proper,  in  the  President  alone,  in 
the  courts  of  law,  or  in  the  heads  of  departments. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  Senate,  by  granting  commissions  which  shall 
expire  at  the  end  of  their  next  session. 

Sec.  3.  He  shall  from  time  to  time  give  to  the  Congress  information  of 
the  state  of  the  Union,  and  recommend  to  their  consideration  such  meas¬ 
ures  as  he  shall  judge  necessary  and  expedient ;  he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  them,  and  in  case  of  disagree¬ 
ment  between  them,  with  respect  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  shall  think  proper ;  he  shall  receive 
ambassadors  and  other  public  ministers  ;  he  shall  take  care  that  the  laws 

be  faithfully  executed,  and  shall  commission  all  the  officers  of  the  United 
States. 

Sec.  4.  The  President,  Vice-President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment  for,  and  con¬ 
viction  of,  treason,  bribery,  or  other  high  crimes  and  misdemeanours. 

'  ARTICLE  III 

Section  1.  The  judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish.  The  judges,  both  of  the  Supreme  and 
inferior  courts,  shall  hold  their  offices  during  good  behaviour,  and  shall,  at 
stated  times,  receive  for  their  services  a  compensation,  which  shall  not  be 
diminished  during  their  continuance  in  office. 

Sec.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority ;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls ;  to  all  cases  of  admiralty 
and  maritime  jurisdiction;  to  controversies  to  which  the  United  States 


530 


APPENDIX 


shall  be  a  party  ;  to  controversies  between  two  or  more  States  ;  between 
a  State  and  citizens  of  another  State  ;  between  citizens  of  different  States 
—  between  citizens  of  the  same  State  claiming  lands  under  grants  of  dif¬ 
ferent  States,  and  between  a  State,  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  the  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such 
exceptions,  and  under  such  regulations  as  the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury  ;  and  such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall 
have  been  committed ;  but  when  not  committed  within  any  State,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by  law  have  directed. 

Sec.  3.  Treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort.  No  person  shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

The  Congress  shall  have  power  to  declare  the  punishment  of  treason, 
but  no  attainder  of  treason  shall  work  corruption  of  blood,  or  forfeiture 
except  during  the  life  of  the  person  attainted. 

ARTICLE  IV 

Section  1.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  State.  And 
the  Congress  may  by  general  laws  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

Sec.  2.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice  and  be  found  in  another  State,  shall,  on  demand  of 
the  executive  authority  of  the  State  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  State  having  jurisdiction  of  the  crime. 

No  person  held  to  service  or  labour  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or  regu¬ 
lation  therein,  be  discharged  from  such  service  or  labour,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  service  or  labour  may  be 
due. 

Sec.  3.  New  States  may  be  admitted  by  the  Congress  into  this  Union  ; 
but  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  any 
other  State  ;  nor  any  State  be  formed  by  the  junction  of  two  or  more 
States,  or  parts  of  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned  as  well  as  of  the  Congress. 

I  he  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belonging  to  the 
United  States ;  and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  prejudice  any  claims  of  the  United  States,  or  of  any  particular  State. 


CONSTITUTION  OF  THE  UNITED  STATES 


531 


Sec.  4.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each  of  them 
against  invasion  ;  and  on  application  of  the  legislature,  or  of  the  execu¬ 
tive  (when  the  legislature  cannot  beifenvened),  against  domestic  violence. 

ARTICLE  Y 

The  Congress,  whenever  two-tliirds  of  both  houses  shall  deem  it  neces¬ 
sary,  shall  propose  amendments  to  this  Constitution,  or  on  the  applica¬ 
tion  of  the  legislatures  of  two-tliirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either  case,  shall 
be  valid,  to  all  intents  and  purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  legislatures  of  three-fourths  of  the  several  States,  or  by  con¬ 
ventions  in  three-fourths  thereof,  as  the  one  or  the  other  mode  of  ratifica¬ 
tion  may  be  proposed  by  the  Congress  ;  provided  that  no  amendment 
which  may  be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article  ;  and  that  no  State,  without  its  consent,  shall 
be  deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI 

All  debts  contracted  and  engagements  entered  into,  before  the  adop¬ 
tion  of  this  Constitution,  shall  be  as  valid  against  the  United  States  under 
this  Constitution  as  under  the  Confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land  ;  and  the  judges  in  every  State  shall  be  bound  thereby, 
any  thing  in  the  constitution  or  laws  of  any  State  to  the  contrary  notwith¬ 
standing. 

The  Senators  and  Representatives  before  mentioned,  and  the  members 
of  the  several  State  legislatures,  and  all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  States,  shall  be  bound  by 
oath  or  affirmation  to  support  this  Constitution  ;  but  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States. 

ARTICLE  VII 

The  ratification  of  the  conventions  of  nine  States  shall  be  sufficient 
for  the  establishment  of  this  Constitution  between  the  States  so  ratifying 
the  same. 

Done  in  Convention  by  the  unanimous  consent  of  the  States  present,1 

1  Rhode  Island  was  not  represented.  Several  of  the  delegates  had  left  the 
Convention  before  it  concluded  its  labours,  and  some  others  who  remained 
refused  to  sign.  In  all,  G5  delegates  had  been  appointed,  55  attended,  39  signed. 

The  first  ratification  was  that  of  Delaware,  Dec.  7,  1787  ;  the  ninth  (bring¬ 
ing  the  Constitution  into  force)  that  of  New  Hampshire,  June  21,  1788;  the 
last,  that  of  Rhode  Island,  May  29,  1790. 


532 


APPENDIX 


the  Seventeenth  day  of  September,  in  the  year  of  our  Lord  1787,  and  of 
the  Independence  of  the  United  States  of  America  the  Twelfth. 

In  Witness  whereof  we  have  hereunto  subscribed  our  names. 

Go  Washington, 

Presidt.  and  Deputy  from  Virginia. 

New  Hampshire  —  John  Langdon,  Nicholas  Gilman.  Massachusetts 

—  Nathaniel  Gorham,  Rufus  King.  Connecticut  —  Wm.  Sami.  John¬ 
son,  Roger  Sherman.  New  York  —  Alexander  Hamilton.  New  Jersey 

—  Wil.  Livingston,  Wm.  Paterson,  David  Brearley,  Jona.  Dayton. 
Pennsylvania  —  B.  Franklin,  Thos.  Fitzsimons,  Thomas  Mifflin,  Jared 
Ingersoll,  Robt.  Morris,  James  Wilson,  Geo.  Clymer,  Gouv.  Morris. 
Delaware  —  Geo.  Read,  Richard  Bassett,  Gunning  Bedford,  Jun.,  Jaco. 
Broom,  John  Dickinson.  Maryland  —  James  M’Henry,  Dan.  Carroll, 
Dan.  Jenifer,  of  St.  Thomas.  Virginia — John  Blair,  James  Madison, 
Jun.  North  Carolina  —  Wm.  Blount,  Hugh  Williamson,  Rich’d  Dobbs 
Spaight.  South  Carolina  —  J.  Rutledge,  Charles  Pinckney,  Charles 
Cotesworth  Pinckney,  Pierce  Butler.  Georgia  —  William  Few,  Abr. 
Baldwin. 

Attest:  William  Jackson,  Secretary 


Articles  in  addition  to,  and  amendment  of  the  Constitution  of  the  United 
States  of  America,  proposed  by  Congress ,  and  ratified  by  the  Legis¬ 
latures  of  the  several  States ,  pursuant  to  the  fifth  Article  of  the  origi¬ 
nal  Constitution. 

ARTICLE  Ii 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof  ;  or  abridging  the  freedom  of  speech 
or  of  the  press  ;  or  the  right  of  the  people  peaceably  to  assemlle,  and  to 
petition  the  Government  for  a  redress  of  grievances. 

ARTICLE  II 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free  state, 
the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 

ARTICLE  III 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house,  without 
the  consent  of  the  owner,  nor  in  the  time  of  war,  but  in  a  manner  to  be 
prescribed  by  law. 

ARTICLE  IV 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be  vio- 

1  Amendments  I-X  inclusive  were  proposed  by  Congress  to  the  Legislatures 
of  the  States,  Sept.  25,  1789,  and  ratified  1789-91. 


CONSTITUTION  OF  THE  UNITED  STATES 


533 


lated,  and  no  warrants  shall  issue,  but  upon  probable  cause,  supported  by- 
oath  or  affirmation,  and  particularly  describing  the  place  to  be  searched, 
and  the  persons  or  things  to  be  seized. 


ARTICLE  V 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual 
service  in  time  of  war  or  public  danger  ;  nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall 
be  compelled  in  any  criminal  case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law  ;  nor 
shall  private  property  be  taken  for  public  use,  without  just  compensation. 


ARTICLE  VI 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation ;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  witnesses  in  his  favour, 
and  to  have  the  assistance  of  counsel  for  his  defence. 

ARTICLE  VII 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact 
tried  by  a  jury  shall  be  otherwise  re-examined  in  any  court  of  the  United 
States  than  according  to  the  rules  of  the  common  law. 


ARTICLE  VIII 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted. 


ARTICLE  IX 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 


ARTICLE  X 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively,  or 
to  the  people. 


534 


APPENDIX 


ARTICLE  XI1 2 

The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  apotlier  State,  or  by  citizens  or  subjects 
of  any  foreign  State. 


^ARTICLE  XII 2 

The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot 
for  President  and  Vice-President,  one  of  whom  at  least  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves  ;  they  shall  name  in  their 
ballots  the  person  voted  for  as  President,  and  in  distinct  ballots  the  per¬ 
son  voted  for  as  Vice-President,  and  they  shall  make  distinct  lists  of  all 
persons  voted  for  as  President,  and  of  all  persons  voted  for  as  Vice-Presi¬ 
dent,  and  of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate ;  —  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall  then  be  counted  ;  —  The  per¬ 
son  having  the  greatest  number  of  votes  for  President  shall  be  the  Presi¬ 
dent,  if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed ;  and  if  no  person  have  such  majority,  then  from  the  persons 
having  the  highest  numbers  not  exceeding  three  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  President,  the  votes  shall 
be  taken  by  States,  the  representation  from  each  State  having  one  vote  ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be  neces¬ 
sary  to  a  choice.  And  if  the  House  of  Representatives  shall  not  choose  a, 
President  whenever  the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  Vice-President  shall  act 
as  President,  as  in  the  case  of  the  death  or  other  constitutional  disability 
of  the  President. 

The  person  having  the  greatest  number  of  votes  as  Vice-President  shall 
be  the  Vice-President,  if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed,  and  if  no  person  have  a  majority,  then  from  the  two 
highest  numbers  on  the  list  the  Senate  shall  choose  the  Vice-President ; 
a  quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number 
of  Senators,  and  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 

1  Amendt.  XI  was  proposed  by  Congress  Sept.  5,  1794,  and  declared  to  have 
been  ratified  by  the  legislatures  of  three-fourths  of  the  States,  Jan.  8,  1798. 

2  Amendt.  XII  was  proposed  by  Congress  Dec.  12, 1803,  and  declared  to  have 
been  ratified  Sept.  25,  1804. 


CONSTITUTION  OF  THE  UNITED  STATES 


535 


ARTICLE  XIII  i 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their  juris¬ 
diction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

ARTICLE  XIV  2 

Section  1.  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States  ;  nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law  ;  nor  deny  to  any  person  within  its  jurisdic¬ 
tion  the  equal  protection  of  the  laws. 

Sec.  2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice- 
President  of  the  United  States,  Representatives  in  Congress,  the  executive 
and  judicial  officers  of  a  State,  or  the  members  of  the  legislature  thereof, 
is  denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion,  or  other  crime,  the  basis  of  representa¬ 
tion  therein  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

Sec.  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or 
elector  of  President  and  Vice-President,  or  hold  any  office,  civil  or  mili¬ 
tary,  under  the  United  States,  or  under  any  State,  who,  having  previously 
taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  legislature,  or  as  an  executive  or  judi¬ 
cial  officer  of  any  State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against  the  same,  or  given 
aid  or  comfort  to  the  enemies  thereof.  But  Congress  may,  by  a  vote  of 
two-thirds  of  each  House,  remove  such  disability. 

Sec.  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the 

1  Amendt.  XIII  was  proposed  by  Congress  Feb.  1,  1865,  and  declared  to 
have  been  ratified  by  27  of  the  36  States,  Dec.  18,  1865. 

2  Amendt.  XIV  was  proposed  by  Congress  June  16,  1866,  and  declared  to 
have  been  ratified  by  30  of  the  36  States,  July  28, 1868. 


536 


APPENDIX 


United  States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave ; 
but  all  such  debts,  obligations,  and  claims  shall  be  held  illegal  and  void. 

Sec.  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 


ARTICLE  XYi 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any  State  on  account 
of  race,  colour,  or  previous  condition  of  servitude. 

Sec.  2.  The  Congress  shall  have  power  to  enforce  this  article  by  appro¬ 
priate  legislation. 

1  Amendt.  XV  was  proposed  by  Congress  Feb.  26, 1869,  and  declared  to  have 
been  ratified  by  29  of  the  37  States,  March  30, 1870. 


INDEX 


Achaean  League,  248 
Act  of  Settlement  (English),  178 
Acts  of  Congress,  public  and  private, 
123 

Adams,  John  (President),  25,  26,  29, 
58,  69,  199,  449,  457 

Adams,  J.  Q.  (President),  31,  62,  66, 
459 

Alaska,  397,  461 
Aldermen,  419 
Aliens,  allowed  to  vote,  234 
Ambassadors,  appointment  of,  37 
Amendments  to  the  Federal  Consti¬ 
tution,  13,  39,  73,  95,  174,  236,  254- 
259 ;  to  State  constitutions,  325 
America,  a  commonwealth  of  common¬ 
wealths,  4 ;  intense  faith  of  its  people 
in,  248 

“American,”  meaning  of  the  term,  7 
American  and  European  systems  com¬ 
pared:  in  the  proportion  of  first- 
rate  ability  engaged  in  politics,  59, 
60;  position  of  the  President,  67; 
Congress,  139,  147,  150,  201  sqq.; 
contrast  with  the  cabinet  system, 
201-213;  defects  of  the  frame  of 
government,  220;  fear  of  foreign 
aggression,  221;  the  foundations  of 
party,  455 ;  general  interest  in  poli¬ 
tics,  481 

American  Constitution.  See  Constitu¬ 
tion 

American  experience,  applied  to  Euro¬ 
pean  problems,  140 

American  government.  See  Federal 
system 

American  Protestant  Episcopal  Church 
and  its  liturgy,  3 

Anglo-American  race,  intrinsic  excel¬ 
lence  of,  14  ;  political  genius  of,  14 
Annapolis,  convention  at,  1786,  8 
Annual  letter  of  secretary  of  the 
treasury,  132 


Appropriation  bills,  159 
Arizona,  Territory  of,  399 
Army,  control  of,  17,  37 
“Articles  of  Confederation  and  Per¬ 
petual  Union  ”  of  1781,  8,  9 
Arthur,  President,  216 
Attorney-General,  the,  67 

Balance  of  power  in  the  Federal 
Constitution,  162-166,  278,  480 
Balloting  in  convention,  mode  of,  474 
Bank,  United  States,  207 
Bar,  the  American:  on  the  judiciary, 
353 

Bench.  See  Judiciary 
Bill  of  Rights  (English) ,  178 
Bill  or  Declaration  of  Rights  of  1791, 
embodied  in  Constitution,  13 ;  con¬ 
tained  germ  of  Civil  War,  13  ;  re¬ 
ferred  to,  255;  in  State  constitu¬ 
tions,  307-310 

Bills,  Congressional,  always  private 
bills,  125 

Bills,  government,  in  England,  their 
policy  carefully  weighed,  124 
Bills,  House  and  Senate,  103 
Blackstone,  Mr.  Justice,  quoted,  14, 
314 

Blaine,  J.  G.,  28,  476 
“  Bolters,”  490 

British  colonies,  governors  in,  irre¬ 
movable  by  the  colony,  201 
Brooklyn,  city  of,  charter,  434;  pop¬ 
ulation  of,  and  city,  referred  to, 
430 

Buchanan,  President,  63 
Burr,  Aaron,  31,  458 

Cabinet,  the  President’s,  64,  70 ;  eight 
officials,  64;  the  President’s  selec¬ 
tion,  65;  Secretary  of  State,  66; 
Secretary  of  the  Treasury,  66 ;  Sec¬ 
retary  of  the  Interior,  66;  Sec- 


537 


538 


INDEX 


retaries  of  War  and  Navy,  67 ; 
Attorney-General,  67 ;  the  working 
of,  68  ;  the  President’s  responsibility, 
69 ;  comparison  with  European  sys¬ 
tem,  70 

Cabinet,  the,  system  of  government, 
208  sqq. 

Csesarism,  improbability  of,  in  Amer¬ 
ica,  50 

Calhoun,  John  C.,  63,  454,  459 
Carolina,  North,  State  of,  12,  287 
Carolina,  South,  27  ;  and  State  rights, 
147  ;  defies  Congress,  281 
“  Carpet-baggers  ”  in  the  South,  247 
Caucus,  party,  in  Congress,  89,  153 
Chambers,  second,  American  view  of, 
139 

Chancery  courts,  347 
Charles  I.  and  the  English  Parlia- 
ment,  181 

Charleston,  Democratic  convention  of 
1860,  at,  465 
Chase,  Mr.,  65 

Chase,  Judge  Samuel,  impeachment 
of,  169,  192 
Circuit  courts,  169 

Cities,  debts  of,  364,  423 ;  their  relation 
to  townships,  407,  441 ;  their  growth, 
417 ;  their  organization,  417  sqq. 
See  Municipal  government 
Citizenship  of  the  United  States,  291 
City  governments,  necessity  for  con¬ 
trol  over,  422 
Civil  Service  Reform,  425 
Civil  War,  what  it  settled,  242 
Clay,  Henry,  31,  52,  452-454 
Cleveland,  Grover  (President),  28,  42, 
156 

Clinton,  Governor,  25,  458 
Closure  of  debate  in  Congress,  102 
Coinage  Act  of  1873,  136 
Collisions  between  Congress  and  Sen¬ 
ate,  140,  142 

Colonists,  early,  elements  of  diversity 
as  well  as  of  unity  among  them, 
10 

Colorado,  State  of,  335 
Columbia,  Federal  District  of,  397 
Commerce,  power  of  regulating,  17 
Commercial  distress,  1733-1786,  8 
Committee  of  Appropriations,  133, 135 
“Committee  of  Conference,”  141 


Committee  of  Ways  and  Means,  116, 

133,  135 

Committee  on  Rivers  and  Harbours, 

133 

Committees  of  Congress,  85,  106,  113, 

115,  122,  134,  135 

Common  Councils,  419 

Commons,  House  of.  See  House  of 
Commons 

Complexity  of  American  institutions,  4 

Confederation  of  1781,  7 

Congress  of  1754  at  Albany,  6;  of  1765 
at  New  York,  7 ;  of  1774-1788  at 
Philadelphia,  7,  8 

Congress  of  the  United  States,  estab¬ 
lished  by  the  Constitution  of  1789, 
19,  20,  94 ;  its  relation  to  the  Presi¬ 
dent,  41,  43,  69,  155,  160,  203,  205; 
its  powers,  44 ;  committees,  85,  107, 

116,  132,  133;  criticism  of  its  legis¬ 
lation,  125:  of  its  finance,  131;  the 
division  into  two  chambers,  138 ; 
their  substantial  identity  of  char¬ 
acter,  139 ;  collisions  between  the 
two,  140 ;  choice  of  members  of,  143 ; 
influence  of  local  feeling  in  elec¬ 
tions,  143 ;  salaries  of  members, 
146;  short  tenure  of  office,  146;  and 
short  duration  of  a  Congress,  147 ; 
its  numbers,  148;  good  attendance 
of  members,  149;  want  of  oppor¬ 
tunities  for  distinction,  149 ;  absence 
of  leaders,  150 ;  party  caucuses,  152 ; 
want  of  a  consistent  policy,  153; 
few  open  relations  with  the  execu¬ 
tive,  155 ;  control  over  the  latter, 
156 ;  power  of  the  purse,  158 ;  can¬ 
not  dismiss  an  official,  158  ;  and  su¬ 
preme  power  in  the  government, 
166 ;  the  Constitution  out  of  the 
reach  of  Congress,  179;  proposed 
veto  on  State  legislation,  186;  de¬ 
fects  in  the  structure  and  working 
of  Congress  summarized,  216;  its 
relations  to  the  electors,  217 ;  “  con¬ 
current  legislation,”  236;  electoral 
franchise,  274;  Congressional  cau¬ 
cus  for  the  early  Presidential  elec¬ 
tions,  458 

Congressional  encroachment,  distrust 
of,  43 

Congressional  Record ,  101 


INDEX 


539 


Connecticut,  State  of,  6,  147,  300,  333, 
349 

Constitution  (Federal)  of  1789,  diffi¬ 
culty  of  framing  it,  9;  an  instru¬ 
ment  of  compromise,  11 ;  opposition 
to  its  ratification,  12;  fear  of  Euro¬ 
pean  aggression  led  to  its  adoption, 
13;  original  amendments  to,  13; 
causes  of  its  excellence,  14 ;  its 
double  aspect,  16 ;  the  complement 
and  crown  of  the  State  constitutions, 
17 ;  functions  of  government  it  pro¬ 
vides  for,  17 ;  objects  of  its  fram¬ 
ers,  18,  162,  221,  229;  creation  of 
two  chambers  by,  138 ;  scheme  of, 
tends  to  put  stability  above  activity, 
87 ;  oath  of  allegiance  to  it,  99 ;  bal¬ 
ance  of  power  it  provides  for,  162, 
283,  480;  its  relation  to  Congress, 
179 ;  to  the  courts,  179  sqq. ;  respect 
felt  for  it,  186,  222 ;  its  success,  222 ; 
peculiar  distribution  of  govern¬ 
mental  functions,  226;  remarkable 
omissions,  229,  231 ;  limits  the  com¬ 
petence  of  Congress,  236 ;  by  amend¬ 
ment,  254 ;  by  interpretation  and 
construction,  260;  by  legislation, 
272;  by  usage,  272;  collisions  with 
the  executive  or  legislature,  275 ;  re¬ 
sults  of  this  development,  278;  ser¬ 
vices  of  the  Constitution  to  the 
nation,  283;  the  Constitution  given 
at  length,  523-534 

Constitution  of  North  American  colo¬ 
nies,  6,  299;  of  1777, 7 

Constitutions  of  the  States,  15 ;  their 
history,  297, 329 ;  mode  of  alteration, 
303 ;  their  real  nature,  303 ;  their  con¬ 
tents,  306 ;  confusion  of  provisions, 
311 ;  less  capacity  for  expansion 
than  in  the  Federal  Constitution, 
312 ;  their  development,  317  ;  types 
of  constitutions,  318 ;  their  length, 
319;  growth  of  democratic  tenden¬ 
cies,  320  ;  comparative  frequency  of 
change,  320;  jealousy  of  officials, 
321 ;  protection  of  private  property, 
322 ;  extension  of  State  interference, 
322;  penalties  not  always  enforced, 
323;  legislation  by  a  constitution, 
324;  its  demerits  and  its  advan¬ 
tages,  326 


Constitutions,  rigid  or  written,  15, 
19-21,  44,  50,  73,  280,  283;  con¬ 
trasted  with  flexible  constitutions, 

275 

Constitutional  amendments,  13,  39, 
95,  174,  236,  254-259,  325 
Constitutional  conventions.  See  Con¬ 
ventions 

Continental  Congress  of  1774  at  Phila¬ 
delphia,  7 

Convention  (Constitutional)  of  1786  at 
Annapolis,  8;  of  1787  at  Philadel¬ 
phia,  8-10,  15,  138,  161,  162,  224,  233, 
447 ;  of  different  States,  12-13 
Conventions,  note  on  constitutional; 
their  evolution,  457 ;  composition, 
459;  working,  462;  objects,  465; 
classes  of  aspirants,  466 ;  com¬ 
plexity  of  their  motives,  468 ;  pre¬ 
liminary  work,  468;  opening  of  the 
convention,  469;  the  voting,  474 
Cooley,  T.  M.  (Judge),  quoted,  220, 

276 

Cooley’s  Constitutional  Limitations , 
quoted,  172 

Cooley’s  History  of  Michigan  cited, 
282 

Cooley’s  Principles  of  Constitutional 
Law  quoted,  172,  175 
Copyright,  17 

County  organization,  408-410,  413 
Courtesy  of  the  Senate,  46 
Currency,  control  of  the,  17 

Dakota,  State  of,  95,  310,  335,  398 
“Dark  Horse,”  meaning  of  the  term, 
466,  467 ;  referred  to,  476 
Darwin,  the  “  struggle  for  existence,” 
and  political  strife,  279 
Debt,  National,  136 ;  public  debts  of 
States,  362  ;  of  cities,  365,  423 
Declaration  of  Independence,  the,  68, 
307 

Deficiency  Bill,  135 
Delaware,  State  of,  94,  287,  336 
Democracies,  and  the  control  of  for¬ 
eign  policy,  79,  244 ;  charged  with 
fickleness,  321 ;  and  the  judiciary, 
349 

Democracy  in  America,  and  the  judi¬ 
ciary,  349,  354;  its  educative  influ- 
I  ence,  498 


540 


INDEX 


Democratic  party,  the,  of  1793  (or 
Republicans) ,  27,  447 ;  of  1829,  193, 
451,  455,  456,  461 

Distinguished  men,  want  of,  in  Amer¬ 
ica,  58-63,  149,  150 
District  courts,  169 

Divisions  in  Congress,  mode  of  taking, 
100 

Dred  Scott  decision,  189,  193,  268,  454, 
455 

Education,  State  hoards  of,  414 
Education,  public,  in  America,  323,  414 
Elections,  influence  of  local  feeling 
in,  143-145 :  question  of  annual  elec¬ 
tions,  147;  cost  of  elections,  96; 
elections  the  instrument  of  govern¬ 
ment  by  public  opinion,  484 
Elections,  Presidential,  22,  54,  214; 

nominating  conventions,  457 
Elliot’s  Debates  quoted,  12,  25,  74,  83 
England,  former  American  hatred  of, 
10 

England  and  America  compared ;  the 
judiciary,  19,  168,  197;  Parliament¬ 
ary  system,  19,  40,  64,  91,  98  sqq., 
104,  112,  123,  147,  150,  201 ;  royal 
prerogative,  40,  43,  52,  55,  96,  148; 
elections,  53,  55,  96,  145 ;  the  Cabi¬ 
net,  64,  66,  67 ;  parties,  112 ;  finance, 
131 ;  whips,  151 ;  interpretation  of 
statutes,  180-183,  190;  relations  of 
executive  and  legislature,  201 ;  “  re¬ 
ferendum,”  327,  395;  counties,  408; 
public  opinion,  481,  482-490,  501 
English  common  and  statute  law, 
taken  by  the  United  States  as  a 
model,  246 

English  Constitution,  referred  to,  14- 
16,  18-21,  40,  131,  178,  181,  201,  272, 
280,  313 

English  counties,  formerly  indepen¬ 
dent  kingdoms,  now  local  adminis¬ 
trative  areas, 4 

English  Parliament  omnipotent,  179 
Equalization,  Board  of,  357,  421 
European  aggressions,  fear  of,  13 
Exchequer,  chancellor  of  (English), 
his  budget,  131 

Executive,  American:  influence  of 
public  opinion  on  it,  479.  See  Cabi¬ 
net,  President,  Senate 


■  Executive  and  legislative  depart¬ 
ments,  separated  by  the  American 
Constitution,  68,  69,  134,  155  sqq., 
160  sqq.;  their  relations  under  the 
European  Cabinet  system,  201  sqq.; 
struggles  between  them  in  England, 
204;  and  in  America,  205;  results  of 
their  separation,  209;  danger  of 
making  legislature  supreme,  442 

“  Favourite  Son,”  467 
Federal  courts.  See  Judiciary  (Fed¬ 
eral) 

Federal  government,  the:  its  chief 
functions,  17,  225 ;  limitations  on 
its  powers,  20,  21,  227;  its  several 
departments :  the  President,  22 ; 
Cabinet,  64;  Senate,  71;  House  of 
Representatives,  94 ;  the  legislature 
and  executive,  161;  the  judiciary, 
167;  “concurrent  powers,”  227; 
working  relations  with  the  State 
governments,  233 ;  intervention  in 
disturbances,  237;  its  relations  to 
individual  citizens,  237 ;  cases  of  re¬ 
sistance,  240;  coercion  of  a  State 
impossible,  242;  the  determination 
of  its  powers,  263;  lines  of  their 
development,  264;  results  of  the 
latter,  278 

Federalist  party,  the,  26,  31,  68,  448, 
452,  458 

Federalist,  The,  quoted,  83,  84,  147, 
168,  174,  185 

Federal  system  of  America,  the  ;  its 
main  features,  224;  distribution  of 
powers,  225;  omissions  in  the  Con¬ 
stitution,  231;  indestructibility  of 
the  Union,  232 ;  working  of  the  sys¬ 
tem,  233;  criticism  of  it,  243;  its 
merits,  248 ;  causes  of  its  stability, 
252;  dominance  of  the  centralizing 
tendencies,  281 ;  its  future,  487 

Federation,  faults  attributed  to,  243; 
their  merits  as  illustrated  by  Amer¬ 
ica,  248 

“Fifteenth  Amendment,”  95,  229,  234 

Filibustering,  102 

Financial  bills  in  England,  131 ;  mode 
of  passing  them  in  America,  132- 
137  ;  results  of  the  system,  136 ;  rea¬ 
son  for  it,  136 ;  flourishing  financial 


INDEX 


541 


condition  of  America,  137 ;  the  pay¬ 
ing  off  of  the  National  debt,  136; 
State  finance,  356-365 
Fletcher  v.  Peck,  187 
Florida,  sale  of,  by  Spain,  13 
Foreign  relations,  control  of,  17,  37, 
79;  discontinuity  of  policy,  53;  di¬ 
vision  of  powers  in  America,  164; 
faults  due  to  the  Federal  system, 
243 ;  influence  of  public  opinion,  501 
France,  sale  of  Louisiana  by,  13 
Franklin,  Benjamin,  9,  146 
Free  trade  and  protection,  133 
“  Free  Soilers  ”  party,  454 
Fremont,  General,  454 
French  Canadians  in  New  England 
407,  499 

French  Constitution  and  government 
referred  to,  44,  148 

French  Constitution  of  1791  referred 
to,  44 

French  Senate,  148 

Fundamental  orders  of  Connecticut, 
of  1638,  the  oldest  political  Consti¬ 
tution  in  America,  299 

Gallatin,  Albert,  66 

Garfield,  J.  A.  (President),  30,  35,  47, 
476 

“General  Ticket”  system  of  voting, 

Georgia,  State  of,  138,  174,  187,  193; 

and  the  Supreme  Court,  281 
Germanic  Confederation,  4 
“  Gerrymandering,”  94 
Government,  forms  of,  in  free  coun¬ 
tries,  201,  478;  their  influence  upon 
national  character,  497 
Governors,  State.  See  State  execu¬ 
tive 

Grant,  U.  S.  (President),  29,  30,  47,  50, 
58,  63,  159,  199,  476,  370 
Great  men,  why  not  chosen  as  Presi¬ 
dents,  58  sqq. 

Habeas  corpus,  suspension  of,  39 
Hamilton,  Alexander,  9,  23,  31,  46,  66, 

68,  72,  83,  155,  168, 174,  447,  449,  456 
Hanseatic  League,  248 
Harrington,  author  of  Oceana,  quoted 
21,  75 

Hartford  Convention  of  1814,  269,  451 


Hastings,  Warren,  34 

Hayes,  R.  B.  (President),  29-32, 34, 159 
238 

Home  of  the  Nation,  the,  503-522; 
phenomena,  racial,  climatic,  and 
economical,  of  the  New  World,  503 ; 
relation  of  geographical  conditions 
to  national  growth,  504 ;  influence  of 
physical  environment,  505 ;  physical 
characteristics,  505 ;  climate  an  his¬ 
torical  factor,  506 ;  aridity  of  the 
West,  507 ;  influence  of  early  colo¬ 
nial  and  frontier  life  on  the  national 
character,  508  ;  early  European  set¬ 
tlement  in  America,  509;  settle¬ 
ment  of  the  Mississippi  basin  and 
the  unity  of  the  nation,  510;  easy 
acquisition  of  the  Pacific  coast,  pre¬ 
viously  held  in  the  feeble  power  of 
Mexico,  511,  512;  wealth  and  pros¬ 
perity  of  the  South  dependent  upon 
slave  labour,  512;  imperilled  unity 
of  the  South,  512;  the  chief  natural 
sources  of  wealth —fertile  soils,  min¬ 
eral  wealth,  and  standing  timber, 
514;  varieties  of  soil,  514;  mineral 
resources,  515 ;  industrial  population 
increasing  faster  than  the  agricultu¬ 
ral,  516;  geography  and  commerce 
point  to  one  nation,  517 ;  with  a  vast 
home  trade,  free  trade  with  foreign 
countries  of  little  consequence,  517; 
railways  and  inter-state  commerce 
unifying  influences,  518;  assimilat¬ 
ing  power  of  language,  institutions, 
and  ideas,  518;  unpeopled  gaps  nar¬ 
rowing  daily,  518;  dialectic  varia¬ 
tions  over  the  Union  few,  519;  im¬ 
migration  and  climate  may  in  time 
create  differences  in  national  and 
physical  types,  519,  520;  average 
duration  of  life  and  physical  well¬ 
being,  520 ;  the  nation  sovereign  of 
its  own  fortunes,  521 ;  immunity 
from  foreign  aggression,  521 ;  im¬ 
mense  defensive  strength  and  ma¬ 
terial  prosperity,  521 
Honourable,  title  of,  98 
House  of  Commons  (English)  referred 
to,  44,  92,  99,  104,  112,  124,  131,  139, 
149,  151,  159,  203,  206.  See  Parlia¬ 
ment 


542 


INDEX 


House  of  Lords  referred  to,  44,  86,  91, 
139,  148,  149,  197,  204.  See  Parlia¬ 
ment 

Hume  (David),  Essays,  referred  to, 
10 

Idaho,  Territory  of,  95,  319,  398 
Illinois,  State  of,  332,  411 
Immigrants  in  America,  10;  influence 
of  public  opinion  upon  them,  449 
Impeachment  of  executive  officers,  34, 
67,  158,  346;  of  judges,  81 
Indian  affairs,  67,  397,  501 
Indian  Territory  (west  of  Arkansas), 
397,  461 

Indiana,  State  of,  287 
Individuals  and  assemblies,  combats 
between,  165 

Interior,  Secretary  of  the,  64,  66 
Interpretation  of  the  Constitution, 
260;  the  interpreting  authorities, 
261;  judicial  principles  of  interpre¬ 
tation  and  construction,  262;  lines 
of  development  of  implied  powers, 
264 ;  development  by  the  executive 
and  Congress,  265;  checks  on  the 
process,  266;  its  important  results, 
268-270 

Iowa,  State  of,  288 
Irish  in  America,  the,  10 
Irish  Nationalists,  150 
Italian  ministers,  usually  members  of 
Parliament,  65 

Jackson,  Andrew  (President),  31,  49, 
193,  207,  458,  502 

Jefferson,  Thomas  (President),  26,  29, 
31,  41,  57,  58,  63,  66,  68,  192,  199, 
266,  295,  447-453,  457,  501-510 
Jersey,  New,  State  of,  300 
Johnson,  Andrew  (President),  35,40, 
43,  44,  92,  153,  158,  159,  199,  207, 
216 

Johnson,  Reverdy,  treaty  of  1869,  79. 
Judiciary  (Federal),  the,  19;  cases  of 
impeachment,  81 ;  Federal  courts 
a  necessary  part  of  the  govern¬ 
ment,  167,  180;  Supreme  Court, 
168;  Circuit  courts,  169;  District 
courts,  170 ;  Court  of  Claims,  170 ; 
their  jurisdiction,  170-174;  proced¬ 
ure,  175;  working  of  the  system, 


177;  necessity  for  its  creation,  182; 
the  courts  do  not  control  the  legis¬ 
lature,  but  interpret  the  law,  183; 
importance  of  their  functions,  184 ; 
the  system  not  novel,  185;  its  suc¬ 
cess,  185;  the  courts  and  politics, 
188;  salutary  influence  of  the  bar, 
190;  conflict  with  other  authorities, 
192 ;  weak  point  in  the  constitution 
of  the  Supreme  Court,  194,  198,  219 ; 
superiority  of  Federal  Circuit  and 
District  judges,  195;  State  judi¬ 
ciary  ill-paid,  195;  corruption  and 
partisanship  rare,  196 ;  Supreme 
Court  ‘  feels  the  touch  of  public 
opinion,’  197 ;  value  of  the  Federal 
courts  to  the  country,  195 ;  degree 
of  strength  and  stability  possessed 
by  them,  196;  independence  of,  219; 
their  relation  to  the  State  courts, 
239;  mode  of  interpreting  the  Con¬ 
stitution,  261;  development  of  their 
powers,  280 

Judiciary  (State),  the,  19;  nature  of 
its  authority,  314 ;  principles  of 
action,  315;  variety  of  courts,  347 ; 
jurisdiction,  348;  attempts  at  codi¬ 
fication,  348;  powers  of  judges,  349; 
mode  of  appointment,  349 ;  tenure  of 
office,  350 ;  salaries,  351 ;  character 
of  the  bench,  351 ;  amount  of  inde¬ 
pendence,  383;  city  judges,  419 

Kent’s  Commentaries  quoted,  170, 
315 

Kentucky  legislature,  on  life  and 
property,  308 

“  Know-nothing”  party,  454 
Knox,  Henry,  Mass.,  68 
Ku  Klux  Klan  outrages,  247 

Laws,  American,  four  kinds  of,  181; 

their  want  of  uniformity,  246 
Lawyers  as  Congressmen,  97 
Lawyers  in  America.  See  Bar  (Ameri¬ 
can) 

Legal  profession.  See  Bar 
Legal  Tender  Acts,  199 
Legislation  in  America :  the  Presi¬ 
dent’s  part  in  it,  40 ;  tests  of  its  ex¬ 
cellence,  123;  applied  to  English 
1  legislation,  124 ;  and  to  American, 


INDEX 


543 


125;  criticism  of  the  method  of 
direct  legislation  by  the  people,  324 
Legislation, special, distinguished  from 
general,  an  evil  in  America,  372, 382, 
438,  441 

Legislative  power,  supreme,  rests  with 
the  people,  183,  324  sqq. 

Legislature  and  executive.  See  Ex¬ 
ecutive 

Legislature  (Federal) .  See  Congress 
Legislature  (State).  See  State  legis¬ 
latures 

Legislatures  (City).  See  Municipal 
Government 
“  Liberty  ”  party,  454 
Lincoln,  Abraham  (President),  29,  35, 
39,  47,  54,  58,  63,  193,  212,  276,  455, 
502 

Liquor  prohibition,  393 
Local  feeling,  strength  of,  61,  62,  143- 
145,  332,  375,  403 

Local  government,  types  of,  in  Amer¬ 
ica,  403,  413 ;  township  type,  403, 413 ; 
county  type,  408 ;  mixed  type,  406, 
410 ;  instance  of  Illinois,  411 ;  of 
Michigan,  412;  of  Iowa,  412;  of 
Pennsylvania,  412  ;  taxation,  415  ; 
chief  functions  of  local  government, 
413 ;  simplicity  of  the  system,  415 ; 
government  of  cities,  417.  See 
Municipal  Government 
Local  option,  326 

Local  self-government,  advantages  of, 
249 

Logan,  General,  476 
Louisiana  (French  territory,  west  of 
the  Mississippi),  13,  39,  266,  451 
Louisiana,  State  of,  39,  269,  308 
Low,  Honourable  Seth,  on  “Muni¬ 
cipal  Government  in  the  U.  S.,”  428, 
444 

Lowell,  J.  R.,  Address  on  Democracy, 
quoted,  18 

Machine.  See  under  Party  Organi¬ 
zation 

Madison,  James  (President),  23,  46, 
58,  66,  449,  458 
Magna  Charta,  178 

Marshall,  John  (Chief-Justice),  46, 174- 
176,  185,  191,  192,  263  sqq. 

Maryland,  State  of,  27,  287,  310 


Massachusetts,  State  of,  12,  298,  310, 
369,  394 

Mayoralty,  the,  and  its  powers,  417, 
436 

Merchant  Guilds,  English,  297 
Mexico  and  the  United  States,  244 
Michigan,  State  of,  27 
Militia,  the,  37 

Minority  representation  in  cities,  419 
Mirabeau,  quoted,  86 
Mississippi,  State  of,  Constitution,  323 
Missouri  Compromise  of  1820,  452,  453 
Missouri,  State  of,  452 
Moderator  of  a  town-meeting,  407 
Monroe,  James  (President) ,  29,  66, 452, 
449 

Montana,  State  of,  95,  398 
Municipal  government  in  America;  its 
organization,  417 ;  the  mayor,  417  ; 
aldermen  and  Common  Council,  418 ; 
judges,  419;  nature  of  its  functions, 
418  ;  tests  of  efficiency,  422 ;  case  of 
Philadelphia,  424 ;  the  system  a  con¬ 
spicuous  failure,  422 ;  nature  of  the 
evil,  423;  its  causes,  423;  remedies 
proposed,  425;  Hon.  Seth  Low  on 
municipal  government,  428 ;  system 
of  Brooklyn,  432 ;  problem  of  the 
legislative  branch  of  city  govern¬ 
ment,  441 ;  tendency  towards  im¬ 
provement,  442 

National  debt.  See  Debt 
National  nominating  conventions. 
See  Conventions 

Nations  and  small  communities,  types 
of  relationship  between,  4 
Naturalization  laws,  292 
Navy,  control  of  the,  17,  37 
Navy,  Secretary  of  the,  64 
Nebraska,  State  of,  73 
Negro  vote,  the,  11,  27 
Nevada,  State  of,  95,  401 
New  England  States,  usually  Repub¬ 
lican,  62 

New  Hampshire,  State  of,  303 
New  Jersey  and  independence  of  Eng¬ 
land,  300 

New  York,  city  of,  419,  441 
New  York  commissioners  of  1876,  on 
the  city’s  misgovernment,  423 
New  York,  State  of,  11,  12,  72,  95 


544 


INDEX 


Nominating  conventions.  See  Con¬ 
ventions 

Nortli-west,  most  populous  section  of 
the  Union,  61 ;  usually  Republican, 
62 

North-western  man,  primci  facie  the 
best  candidate  for  the  Presidency, 
62 

Oath  of  allegiance  to  the  Constitu¬ 
tion,  99 

Oklahoma  Territory,  399 
Opinion,  public,  government  by  it,  478 
Opinion,  public,  in  America,  the  real 
source  of  the  President’s  power,  50 ; 
its  influence  on  the  Supreme  Federal 
Court,  197 ;  on  the  interpretation  of 
the  Constitution,  266;  on  the  State 
judiciary,  350 ;  its  character  on  the 
whole  upright,  496;  nature  of  its 
rule,  478 ;  causes  of  its  importance, 
480;  the  consequences,  481;  public 
opinion  in  America,  482;  its  influ¬ 
ence  exerted  through  elections,  484; 
independent  opinion  and  the  great 
parties,  485 ;  its  influence  on  officials, 
486 ;  private  agencies  for  the  expres¬ 
sion  of  opinion,  487 ;  its  relation  to 
the  regular  party  organizations,  488 ; 
its  activity  less  continuous  than  in 
Europe,  488 ;  its  defects  as  a  govern¬ 
ing  power,  491;  difference  in  this 
between  States  and  the  whole  Union, 
493;  educative  influence  on  new¬ 
comers,  496 ;  its  influence  on  public 
appointments,  500 ;  on  foreign  policy, 
501 

Parliament,  English,  a  sovereign  and 
constitutional  assembly,  19;  referred 
to,  41,  124,  131,  179,  182,  184,  203 
sqq.,  384 

Parties,  political,  in  America:  effect 
of  the  struggle  over  the  Constitution 
of  1789,  12 ;  their  interference  with 
presidential  elections,  27, 29 ;  growth 
of  a  Federalist  party,  69,  269;  in¬ 
fluence  of  parties  in  the  Senate  on 
foreign  policy,  80;  no  real  party 
government  in  America,  208 ;  State 
parties  engulfed  by  the  National, 
387 ;  causes  of  this,  389 ;  its  results, 


390 ;  cases  of  genuine  State  parties, 
393;  factions,  393;  party  spirit  in 
rural  local  government,  395 ;  in 
cities,  395;  importance  of  the  par¬ 
ties,  427 ;  the  great  moving  forces 
in  America,  447 ;  their  history,  447 ; 
Federalists  and  Republicans,  448; 
National  Republicans  or  Whigs,  and 
Democrats,  452;  Republican  party 
of  1856,  454;  the  parties  and  inde¬ 
pendent  opinion,  484-489 
Party  government:  its  meaning  in 
America,  208 

Party  organization  in  America:  its 
perfection,  79;  in  Congress,  112, 
113,  150;  the  party  caucus,  152; 
nominating  conventions  ( q.v .),  457 
Patents,  17,  67 
Patronage,  44-48,  80,  81  sqq . 

Paupers,  414 

Payment  of  legislators,  146 
Peers,  English,  creation  of,  by  the 
sovereign,  204 

Pennsylvania,  State  of,  27,  95,  138, 
412,  423 
Pensions,  67 

Philadelphia,  city  of,  426,  488 
Philadelphia  Convention  of  1787,  8, 10, 
14,  16?,  201,  224,  233,  447 
Pierce,  Franklin,  63 
Platform,  the,  in  politics,  488 
Politics,  American,  unattractiveness 
of,  59,  149 

Polk,  President,  38,  63 
Postmaster-General,  the,  64 
Post-oftice,  the,  17 

President,  the,  18,  20;  reasons  for 
creating  the  office,  22,  23 ;  nature  of 
his  powers,  24 ;  mode  of  election,  24, 
27,30-33;  re-election,  29 ;  removal 
by  impeachment,  34 ;  his  powers  and 
duties,  37 ;  the  right  of  speaking  to 
the  nation,  39;  and  legislation,  40; 
messages  to  Congress,  41 ;  the  veto 
power,  41,  43,  165,  205 ;  patronage, 
44-48,  80,  81,  273 ;  the  right  to  re¬ 
move  from  office,  46 ;  in  quiet  and 
troublous  times,  48;  corresponding 
personage  in  Europe,  49 ;  source 
of  his  power,  50;  jealousy  of  ‘the 
one  man  power,’  50;  dignity  of  the 
position,  50 ;  defects  of  the  system, 


INDEX 


545 


52-54,  214 ;  its  success  on  the  whole, 
54 ;  the  election  of,  53-55 ;  impor¬ 
tance  of  presidential  elections,  55; 
the  office  as  a  social  institution,  56; 
proposed  title  of,  56 ;  respect  for 
the  office,  57 ;  causes  of  the  want  of 
eminent  Presidents,  58;  brilliant 
gifts  not  required,  60;  power  of 
sectional  feeling,  60;  position  of 
ex-Presidents,  62;  historical  review 
of  the  Presidents,  63;  his  responsi¬ 
bility,  67 ;  relation  to  his  ministers, 
67;  to  Congress,  67-09,  155-160, 
203,  205,  209 ;  the  President,  when 
attacked  in  Congress,  156  ;  the 
President  really  a  branch  of  the 
legislature,  164 ;  his  veto  power  the 
real  strength  of  the  executive,  157, 
164;  conflicts  with  Congress,  207; 
his  consent  not  required  to  consti¬ 
tutional  amendments,  255 ;  claim 
to  interpret  the  Constitution,  262; 
development  of  his  functions,  279; 
his  position  compared  with  a  State 
governor’s,  367;  mode  of  nomina¬ 
tion,  458 

Presidential  election  dispute  of  1876, 
32,  34,  54,  195,  215 

Presidential  election,  sometimes  a 
turning-point  in  history,  55 
Presidential  electors,  24-31 
Private  bills.  See  Legislation  (Special) 
Privy  Council  of  England,  6 
Prohibitionist  party,  394 
Property  tax,  criticism  on,  358 
“  Proprietors”  in  the  North  American 
colonies,  201 

Protection  and  free  trade,  133 
Protection  and  the  tariff,  137 
Protection  of  citizens,  provided  for  by  I 
the  Constitution,  17 

Public  life,  bracing  atmosphere  of,  in  ! 
America,  498 

Public  opinion.  See  Opinion 
Puritanism,  traces  of,  288  f 

j 

Quorum  in  Congress,  95,  149 

“Referendum,”  the,  325,  491 
Religious  equality,  enforced  by  the  J 
Federal  and  State  constitutions,  308  J 
Representatives,  Federal,  House  of, 


,  instances  of  election  of  Presidents 
by  it,  30;  influence  on  foreign  pol- 
;  icy,  38;  mode  of  election,  94; 
speeches  in,  89;  character  of  its 
members,  98,  112;  its  powers,  98; 
procedure,  98-104 ;  the  speaker,  105, 
279;  the  House  at  work,  108;  ab¬ 
sence  of  party  leaders,  112,  150; 
effect  upon  the  discharge  of  its 
functions,  113;  mode  of  voting,  113; 
its  committees,  115,  122,  133,  134; 
results  of  the  system,  119-122;  why 
it  is  maintained,  122;  criticism  of 
the  House’s  legislation,  125;  of  its 
finance,  131 ;  collisions  with  the 
Senate,  140;  salaries  of  members, 
146;  short  tenure  of  office  and  its 
results,  146,  147 ;  want  of  opportu¬ 
nities  for  distinction,  149;  party 
caucuses,  152 ;  how  far  the  House  is 
a  party  body ,  153.  See  Congress 
Representatives,  State,  Houses  of.  See 
State  Legislatures 

Representative  system,  essentials  of 
a,  218 

Republican  party  of  1793  (or  Demo¬ 
crats),  26,  447;  National  Republi¬ 
cans  or  Whigs  of  1829,  452,  456 
Rhode  Island,  State  of,  6,  8,  12,  39,  95, 
147,  182,  287,  300,  302,  337,  350,  383, 
394,  416 

Riders  to  appropriation  bills,  159 
Roman  Senate,  165 

Rules  for  speakers  in  House  of  Repre¬ 
sentatives,  102 

Salaries  of  Congressmen,  146 
Schedule,  the,  of  a  constitution,  306 
Scott  v.  Sanclford,  case  of,  193,  455 
Secession  of  a  State  impossible,  232, 
242,  245 

Secession,  War  of,  referred  to,  11,  39, 
42,  55,  66,  95,  193,  212,  222,  232,  242, 
246,  256,  265,  294 
Second  Chambers,  utility  of,  140 
Secretary  of  the  Interior,  64,  66;  of 
the  Navy,  64;  of  State,  64,  66;  of 
the  Treasury,  64,  66 ;  annual  letter, 
132;  of  War,  64,  67 
Sectionalism.  See  Local  Feeling 
Senate,  the  Federal:  its  control  over 
foreign  policy,  38,  79,  80 ;  patronage, 

2  N 


546 


INDEX 


44-48,  80,  81 ;  composition,  71 ;  func¬ 
tions,  72;  the  Senate  essential  to 
the  Federal  scheme,  72,  91 ;  mode 
of  election,  73 ;  of  voting,  74;  tenure 
of  office,  74;  treatment  of  money 
bills,  76;  procedure,  77,  89;  execu¬ 
tive  functions,  78  ;  Foreign  relations 
committee,  78 ;  and  presidential  ap¬ 
pointments,  80;  judicial  functions, 
81;  objects  of  its  creation,  83; 
nature  and  causes  of  its  success,  85 ; 
the  senate  chamber,  88 ;  speeches 
in,  89;  character  of  its  members, 
90 ;  its  place  in  the  constitutional 
system,  92 ;  its  committees,  115 ; 
collisions  with  the  House,  134,  141 ; 
salary  of  members,  146;  quorum, 
149;  absence  of  party  leaders,  150; 
party  caucus,  152;  development  of 
its  functions,  279.  See  Congress 
Senates,  State.  See  State  Legislatures 
Seward,  Mr.,  65 

Sie'yes  and  the  Reign  of  Terror,  222 
Slave-emancipation  proclamations  of 
President  Lincoln,  39 
Slavery  question,  the,  452 
Smith’s  Wealth  of  Nations  quoted, 
300 

Southern  Confederacy,  the,  54 
Spain,  sale  of  Florida  by,  13 
Speaking  in  the  House  of  Representa¬ 
tives,  101 

Speaker  of  the  House  of  Representa¬ 
tives,  35,  100,  104-107,  279 
Spoils  system,  the,  47,  274,  345 
State  constitutions.  See  Constitutions 
of  the  States 

State  executive :  position  of  the  Gov¬ 
ernor,  330,  338,  342-344,  367-369,  381 ; 
outlines  of  the  system,  330;  execu¬ 
tive  councils,  342;  other  officials, 
344 ;  power  of  removal,  346 
State  governments:  their  relation  to 
the  National  government,  225,  233; 
restraints  upon  them,  228,  234; 
cases  of  resistance,  240 ;  secession 
impossible,  242 ;  large  measure  of 
independence  allowed  them,  291 ; 
political  combinations  amongst 
them,  245;  causes  tending  to  dis¬ 
similarity,  287 ;  causes  tending  to* 
uniformity,  289  ;  franchise,  291  ; 


power  over  minor  communities,  292; 
treason  against  a  State,  292 ;  State 
sovereignty,  293-296 ;  history  of 
State  constitutions,  297-302,  329,  330; 
mode  of  alterations,  301 ;  their  real 
nature,  302  ;  their  contents,  306-316 
less  capacity  for  development  tliai 
the  Federal  Constitution,  312;  de¬ 
velopment  of  State  governments, 
317 ;  growth  of  democratic  tenden¬ 
cies,  320 ;  comparative  frequency 
of  change,  320 ;  jealousy  of  officials 
and  of  the  Federal  government,  321 
protection  of  private  property,  321 ; 
extension  of  State  interference,  322; 
penalties  not  always  enforced,  323; 
budgets,  356 ;  forms  of  taxation,  357 ; 
exemptions  and  mode  of  collection, 
359;  amount  of  taxation  restricted, 
360 ;  public  debts,  361 ;  restrictions 
on  borrowing,  363;  working  of  the 
government,  366  sqq. ;  its  defects, 
433 ;  remedies  for  them,  379-385 ; 
decline  of  its  importance,  386,  394; 
change  of  character,  386 ;  relation  to 
the  great  parties,  387 ;  decline  of 
State  politics,  394;  local  govern¬ 
ment,  403 

State  governors,  165 

State  legislatures:  their  relation  to 
the  Federal  Senate,  73,  74 ;  relation 
to  the  governor,  165,  338,  339 ;  rela¬ 
tion  to  the  State  constitutions,  301, 
304;  to  the  courts  of  law,  305;  dis¬ 
trusted  by  the  people,  312,  325 ;  their 
character,  325,  373;  composition, 
330 ;  the  right  of  suffrage,  332  ;  their 
numbers,  336 ;  salaries,  336 ;  ses¬ 
sions,  337 ;  powers  of  the  Senate, 
337 ;  procedure,  338 ;  constitutional 
restrictions  on  them,  339 ;  business, 
371 ;  character  of  the  members,  374 ; 
charges  of  corruption,  374;  local 
influence,  375;  restlessness,  377; 
timidity,  377 ;  philanthropy,  377 ; 
their  defects  summarized,  378 ;  safe- 
guards  and  remedies,  381 ;  effect  on 
their  working  of  the  political  par¬ 
ties,  390 

Statesmen,  want  of  first-class  men, 
150 

States’  Rights,  269,  293-295,  447 


*  * 


INDEX 


547 


Stevens,  Thaddeus,  153 
Story’s  Commentaries  cited,  189 
Suffrage,  right  of,  291 
Supreme  Court,  the  Federal.  See  Judi¬ 
ciary  (Federal) 

Rviss  Constitution  and  Government, 
referred  to,  22,  248 
Swiss  Referendum.  See  Referendum 

Talisman,  The,  Saladin,  quoted  in, 
60 

Taney,  Chief-Justice,  quoted,  172 
Taxation:  for  Federal  purposes,  17, 
76,  240,  357  sqq .;  for  State  purposes, 
357  sqq.;  for  local  purposes,  415; 
mode  of  levying,  415 ;  taxation  in 
cities,  421 

Tenure  of  Office  Act  of  1867,  46 
Territories,  the,  95, 168,  251,  397 ;  their 
organization,  398;  position  of  their 
citizens,  400;  their  conversion  into 
States,  400 ;  their  delegates  admitted 
to  National  conventions,  461 
Thirteen  original  British  colonies,  6, 
182 ;  each  a  self-governing  common¬ 
wealth,  182 
Tilden,  Mr.,  32,  34 

Tocqueville,  Alexis  de,  referred  to,  88 
Town  or  township  system,  404,  406, 
408,  411,  412,  415,  417,  433 
Treasury,  Secretary  of  the,  64,  66 ;  his 
annual  letter,  132 

Treaties,  power  of  making,  37,  79-80 
Tyler,  President,  207 

Union,  Indestructibility  of  the  Fed¬ 
eral,  232,  242,  245 

Unity,  want  of,  in  the  American  gov¬ 
ernment,  210,  217 


United  States  district  attorney,  176 
United  States  marshal,  176 
Utah,  Territory  of,  95 

' 

Van  Buren,  President,  63,  193  • 

Veto  power,  the,  in  America:  of  the 
President,  41-44,  163-165,  207 ;  \  of 
State  governors,  165,  339,  343,  369, 
381 ;  464 ;  proposed  for  Congress, 
186 ;  of  mayors,  418,  438 
Veto  power,  the,  in  England,  44 
Veto  power,  the,  in  France,  44 
Vice-President  facetiously  named  “  His 
Superfluous  Excellency,”  56 
Vice-President  of  the  United  States, 
24,  35,  71,  88,  215,  279 
Virginia  Convention  of  1788,  174 
Virginia,  State  of,  6,  11,  27,  174,  300 

War  of  1812,  the  Union  drifted  into  it, 
244,  245 

War  of  the  President,  17,  38 
War,  Secretary  of,  64 
Washington,  city  of,  56,  90,  149,  397 
Washington,  George  (President),  7,  8, 
23,  25,  29,  40,  41,  56,  57,  63,  68,  190, 
278,  447,  457,  502 
Washington,  State  of,  398 
Webster,  Daniel,  52,  63,  454 
Whig  party,  the,  of  1830,  452,  454 
Whips,  Parliamentary,  their  impor¬ 
tance  in  England,  151 ;  want  of  them 
in  America,  151  sqq. 

Whiskey,  Women’s  Temperance  Cru¬ 
sade  against,  488 
White  House,  the,  56,  57,  62 
Wilson,  Woodrow,  quoted,  136 
Women,  influence  in  politics,  488 
Wyoming,  State  of,  95,  310,  401 


V 

' 


< 


